BLACK v. CULBERTSON
DENNIS W. BLACK v. RICHARD A. CULBERTSON, His Former Attorney and COMMISSIONER Michael Astrue.
Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.
Dennis W. Black, proceeding pro se, appeals the district court‘s order granting his lawyer’s petition for authorization to charge Black reasonable attorney’s fees, pursuant to 42 U.S.C. § 406(b).
Black, represented by his lawyer Richard Culbertson, filed a complaint in the district court, seeking judicial review of the Social Security Commissioner’s final decision denying his application for social security disability insurance (DIB) and supplemental security income (SSI). The district court ruled in Black’s favor, reversing the Commissioner’s final decision and remanding the case for additional proceedings. The court also granted Black’s petition for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), and directed the Commissioner to pay Culbertson $4,584.02 in attorney’s fees.
After the Commissioner awarded Black past-due benefits on remand, Culbertson filed a petition seeking authorization to charge Black reasonable attorney’s fees under section 406(b) for his representation in the district court. Culbertson attached a contingency fee agreement in which Black agreed to pay Culbertson 25% of his past-due benefits if the district court reversed or remanded the Commissioner’s denial of benefits and if Black was then awarded past-due benefits. The agreement also provided that, if the court awarded attorney’s fees under the EAJA, the amount of the EAJA award would be subtracted from the amount Black owed Culbertson based on his past-due benefits award. In a second amended report and recommendation (“R&R”), the magistrate judge recommended that the court authorize Culbertson to charge Black $25,769.49 in reasonable attorney’s fees, consistent with the terms of the contingency fee agreement. The district court overruled Black’s objections and adopted the magistrate’s second amended R&R.
On appeal, Black argues that the district court erred in granting Culbertson’s petition for authorization to charge reasonable attorney’s fees. We review an award of attorney’s fees for an abuse of discretion.
A district court may award reasonable attorney’s fees as part of its judgment in favor of a Social Security claimant who was represented by a lawyer. The attorney’s fee may not be more than “25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment,” and the court must determine whether the requested fee is reasonable based on the services rendered. Id. If an attorney receives attorney’s fee under both the EAJA and section 406(b), he must refund the smaller fee to his client, but “may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent [section] 406(b) fee request.” Id. at 1274.
On remand from the district court, the Commissioner awarded Black a total of $129,672 in past-due Social Security benefits. Pursuant to the contingency fee agreement between Black and Culbertson, Culbertson’s fee for a successful suit would equal 25% of Black’s past-due benefits award ($32,418) minus the amount Culbertson received in EAJA awards (totaling $6,648.51), which amounted to $25,769.49. This fee is consistent with the parties’ agreement and with the statutory limitations. In addition, the district court determined — and Black does not dispute — that this fee was reasonable based on Culbertson’s representation. Thus, we see no abuse of discretion in the district court’s award of attorney’s fees.
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