John F. Boland v. P Kilolo Kijakazi, Acting Commissioner of Social Security

567 F. Supp. 3d 328, 2021 DNH 166

• Court: District Court, D. New Hampshire
• Decided: October 19, 2021
• Docket: 17-cv-172-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John F. Boland

v. Civil No. 17-cv-172-LM Opinion No. 2021 DNH 166 P

Kilolo Kijakazi, Acting Commissioner of Social Security

ORDER Under 42 U.S.C. § 406(b), Attorney Alexandra Jackson seeks $14,399.50 in

attorney fees for her successful representation of Social Security claimant John

Boland. Doc. no. 32. The Acting Commissioner of Social Security,1 in her capacity

as quasi-trustee of Boland’s awarded benefits, does not object to an award of

attorney fees, but asserts that there is a question as to the timeliness of the request

and that the court should examine whether the requested fee is reasonable. For the

following reasons, the court finds that Attorney Jackson’s request for attorney fees

is timely and that the requested fee is reasonable. Accordingly, counsel’s motion for

attorney fees is granted in the amount of $14,399.50.

BACKGROUND

Boland filed an application for disability insurance benefits in 2013. Boland’s

application was initially denied, and he ultimately challenged the denial in this

1 The court has automatically substituted Kilolo Kijakazi, as Acting Commissioner of Social Security, for Andrew Saul, former Commissioner of Social Security. See Fed. R. Civ. P. 25(d). court. The court granted Boland’s motion to reverse, and it remanded the matter to

the Social Security Administration (“SSA”). Judgment was entered on September

25, 2018. After further administrative proceedings on remand, an administrative

law judge issued a fully favorable decision to Boland and awarded him $57,598 in

past due benefits as well as ongoing benefits until he reaches his full retirement

age. Boland’s benefits, including ongoing benefits until he reaches retirement age,

will total about $135,000. Boland was informed of the decision by a “notice of

award,” which he received on June 14, 2021. See doc. no. 32-1. Attorney Jackson

filed the present motion for attorney fees on July 7, 2021.

DISCUSSION

Attorney Jackson requests payment of attorney fees totaling 25% of Boland’s

past-due benefits, a total request of $14,399.50. The Acting Commissioner does not

object to the request for attorney fees, but she identifies a potential issue with the

timeliness of Attorney Jackson’s motion and requests an evaluation of the

reasonableness of the amount. Attorney Jackson filed a reply.

I. Timeliness

The Acting Commissioner states that Federal Rule of Civil Procedure

54(d)(2)(B) requires that motions for attorney fees be filed no later than 14 days

after the entry of judgment, and she observes that the motion here would be around

two-and-a-half years late under that rule. The Acting Commissioner, however,

2 acknowledges that several appellate courts have held that applying Rule 54(d)(2)(B)

strictly produces unfair and unintended results on counsel who seek fees under

§ 406(b).

The court agrees that applying Rule 54(d)(2)(B) strictly would be patently

unfair to counsel. Unless a court order or statute provides otherwise, Rule

54(d)(2)(B) requires that motions for attorney fees be filed within 14 days of the

court’s judgment. In most social security cases, judgment is entered when the

district court remands the matter to SSA for a determination of the amount of the

claimant’s benefits, which typically takes longer than 14 days. However, the

maximum amount of an attorney fees award under § 406(b) is determined by

reference to the claimant’s final award of past-due benefits. See 42 U.S.C. § 406(b)

(stating that court may allow a “reasonable fee” for representation of a successful

claimant “not in excess of 25 percent of the total of the past-due benefits to which

the claimant is entitled”). Therefore, under only the most uncommon circumstances

would claimants’ counsel be able to recover attorney fees if Rule 54(d)(2)(B)’s 14-day

time limitation is applied without exception.

Here, the court entered judgment in this case on September 25, 2018, so, if

Rule 54(d)(2)(B) is applied without exception, the time counsel could have filed her

motion for attorney fees expired 14 days later. But Attorney Jackson could not have

filed a successful motion for attorney fees under § 406(b) until she and Boland knew

the amount of benefits Boland would receive, which did not occur until June 14,

3 2021.2 Indeed, less than a month later, on July 7, Attorney Jackson filed the motion

presently before the court.

The First Circuit has not addressed whether and how courts should apply

Rule 54(d)(2)(B) to motions for attorney fees under § 406(b). Every circuit that has

addressed that issue has provided or suggested some method to avoid the unfair

results created by applying Rule 54(d)(2)(B)’s 14-day limit. See, e.g., Walker v.

Astrue, 593 F.3d 274, 279 (3d Cir. 2010) (describing the result of strictly applying

Rule 54 to attorneys’ fees under § 406(b) as leading to “absurd outcome[s],” working

“patent injustice[s],” and undermining the Congressional purpose “in providing for

fees in the first place”). Despite their universal agreement that Rule 54(d)(2)(B)

should not be strictly applied under these circumstances, the circuits vary on when,

exactly, a motion under § 406(b) is timely filed. Moreover, some of these methods

would result in Attorney Jackson’s motion being untimely, while others would not.

For example, the Second and Third Circuits apply Rule 54(d)(2)(B) but

provide for “equitable tolling” of the 14-day filing period until counsel receives the

notice of award. Sinkler v. Berryhill, 932 F.3d 83, 87-88 (2d Cir. 2019); Walker, 593

F.3d at 279-80. Under this approach, Attorney Jackson’s motion would be untimely

because she filed it more than 14 days after she received notice of the award.

2 Both the Acting Commissioner and Attorney Jackson agree that notice of the

award was not received until June 14, 2021, even though the award was issued on June 8, 2021. See doc. nos. 32-1 at 1, 33 at 3, 34 at 2.

4 The Eleventh Circuit also applies Rule 54(d)(2)(B), but without the equitable

tolling component; instead, it recommends that counsel move for extensions of the

14-day filing period as a matter of course. Bergen v. Comm’r of Social Sec., 454 F.3d

1273, 1277-78 & n.2 (11th Cir. 2006); but see Blitch v. Astrue, 261 Fed. Appx. 241,

242 n.1 (11th Cir. 2008) (unpublished opinion) (acknowledging that the Bergen

solution has not been “universally workable” and suggesting that courts issue

general orders or local rules to resolve the problem). The Fifth Circuit likewise

applies Rule 54(d)(2)(B), but recognizes that the 14-day period may be modified by

court order. See Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006) (holding that

district court abused its discretion by denying motion under § 406(b) as untimely

after court denied as premature the same motion when it was filed prior to award of

benefits). And, finally, the Tenth Circuit simply declines to apply Rule 54 to

§ 406(b) motions. McGraw v. Barnhart, 450 F.3d 493, 504 (10th Cir. 2006).

Instead, the Tenth Circuit looks to Federal Rule of Civil Procedure 60(b)(6)—which

allows a court to relieve a party or “legal representative” from a “final judgment,

order, or proceeding” for reasons that “justify relief”—and provides that “[a] motion

for an award of fees under § 406(b)(1) should be filed within a reasonable time of the

Commissioner’s decision awarding benefits.” Id. at 505. Under each of these

approaches, Attorney Jackson’s motion for attorney fees could be either untimely or

timely, depending on the court’s evaluation of whether an extension is justified or

whether the delay in filing the motion was reasonable.

5 In this case, this court need not and does not endorse any particular

approach.3 The circumstances of this case warrant sua sponte granting an

extension of time to counsel to whatever extent necessary to make her motion

timely. See Fed. R. Civ. P. 54(d)(2) (stating that the motion must be made within 14

days after the entry of judgment unless “a court order provides otherwise”).

Attorney Jackson’s delay in filing her motion for attorney fees was not significant

relative to when she learned the amount of attorney fees that could be claimed

under § 406(b). Indeed, counsel filed her motion within the acceptable time for

filing the same motion in the District of Maine, which has set a 30-day time period

for filing motions under § 406(b) by local rule. See Weimer v. Commissioner, 2016

WL 1069948, at *1 (D. Me. July 20, 2010) (applying District of Maine Local Rule

54.2, which sets a 30-day deadline from the date of the Commissioner of Social

Security’s notice of award). And, in her response to the motion for attorney fees, the

Acting Commissioner does not supply information to suggest that the timing of the

motion prejudiced the claimant nor does it take a position about the appropriate

outcome. Doc. no. 33 at 3 (discussing various existing approaches to handling the

deadline issue, taking no position on the appropriate way to address it, and stating

that she “merely points out these factors for the Court’s consideration”). As the

3 Endorsing one approach over others could lead to more confusion and uncertainty among practitioners in the District of New Hampshire because the decision would be, at best, nonbinding persuasive authority and the appropriate timing for filing a motion for attorneys’ fees under § 406(b) might then vary not only among the different circuits, but among the judges in this district.

6 Acting Commissioner observes, the timing of the motion does not contravene any

existing local rule of the District of New Hampshire or First Circuit precedent. And

any mistake that Attorney Jackson made in determining the necessary timing for

filing a motion for attorney fees was reasonable considering the general lack of

clarity about what the time period for filing such a motion should be.

For those reasons, the court sua sponte grants Attorney Jackson an extension

of time, to the extent necessary, for her motion for attorney fees under § 406(b) filed

on July 7, 2021. Considering this extension of time, the court finds that counsel’s

motion for attorney fees was timely filed.

II. Reasonableness of Amount

The Acting Commissioner also requests that the court examine whether the

amount of Attorney Jackson’s fee request is reasonable, although the Acting

Commissioner does not take a position on reasonableness. Attorney Jackson argues

that her fee request is reasonable considering the number of hours that went into

the case and comparable awards in other cases.

In social security cases where the court issues a judgment favorable to a

claimant, claimant’s counsel may recover fees for their work before the court so long

as the amount is within the 25 percent of the total of claimant’s past-due benefits

and is reasonable. See 42 U.S.C. § 406(b); Gisbrecht v. Barnhart, 535 U.S. 789, 808

(2002); Levesque v. Saul, No. 18-cv-420-LM, 2020 WL 4350730, at *3 (D.N.H. July

7 29, 2020).4 In the absence of an enforceable fee agreement, as in this case,5 the

court applies a “blended” approach to determine whether a requested fee is

reasonable. See Levesque, 2020 WL 4350730, at *3 (applying blended approach

after finding that submitted fee agreement was not enforceable as to § 406(b) fees);

Mounce v. Colvin, No. 10-cv-560-PB, 2016 WL 4444710, at *2 (D.N.H. Aug. 13,

2016) (same). First, the court calculates a baseline lodestar amount from counsel’s

record of billed time and her statement of her hourly billing charge. Levesque, 2020

WL 4350730, at *3. Next, the court considers the factors set forth in Gisbrecht. Id.

“In Gisbrecht, the United States Supreme Court held that courts should consider

several factors when determining whether a fee award is reasonable: (1) the

character of representation; (2) the results achieved; (3) whether the attorney is

responsible for a delay and will profit from an accumulation of benefits during the

pendency of the case in court; and (4) whether the benefits are large in comparison

to the amount of time counsel spent on the case.” Id. at *2; Gisbrecht, 535 U.S. at

808.

A. Applicability of “Blended” Approach

As an initial matter, counsel for Boland contends that the blended approach

is inappropriate after Gisbrecht. Gisbrecht, however, only rejected the practice of

4 The requested fee of $14,399.50 is 25% of the past-due benefits awarded to

Boland, which totaled $57,598.

5 Attorney Jackson did not submit any fee agreement for the court’s consideration and does not contend that any fee agreement between her and Boland existed.

8 displacing fee agreements in favor of the lodestar method. See 535 U.S. at 802-04,

808-09. Where an enforceable fee agreement exists, Gisbrecht holds, the court

should evaluate the reasonableness of a requested fee by looking to the agreement

rather than a lodestar figure. See id. at 809 (“We hold that § 406(b) does not

displace contingent-fee agreements within the statutory ceiling; instead, § 406(b)

instructs courts to review for reasonableness fees yielded by those agreements.”).

Nonetheless, comparing counsel’s requested fee to a lodestar figure can be an

important tool when evaluating the reasonableness of fee request under § 406(b),

particularly in the absence of a fee agreement that would typically provide the

baseline for analysis. See id. at 808 (“[T]he court may require the claimant’s

attorney to submit, not as a basis for satellite litigation, but as an aid to the court’s

assessment of the reasonableness of the fee yielded by the fee agreement, a record of

the hours spent representing the claimant and a statement of the lawyer’s normal

hourly billing charge for noncontingent-fee cases.”). Accordingly, this court

maintains the blended approach in cases where there is no enforceable fee

agreement.

B. Lodestar Figure and Gisbrecht Factors

At the district court level, counsel spent 23 hours of attorney time, which she

billed at $200.35 per hour, and 17.7 hours of paralegal time, which were billed at

$105 per hour. The lodestar figure—the total amount of reported hours multiplied

by the applicable billing rates—is $6,466.55. However, the court also notes

Attorney Jackson’s observation that her hourly rate billed in this case is well below

9 the usual and customary rate for an attorney with her experience in the Portland,

Maine area, which she states would be $350 per hour.

The first three Gisbrecht factors—the character of representation, the results

achieved, and attorney responsibility for any delay—support increasing counsel’s

fee from the lodestar amount. Counsel’s work before this court was skillful and

effective as it resulted in remand to the SSA and a considerable total award—over

$135,000—in Boland’s favor. There is no suggestion that counsel engaged in any

tactics to increase her fee.

The fourth factor, which is whether the requested fee is large in comparison

to the amount of time counsel spent on the case, does not weigh against counsel.

Taking the requested $14,399.50 fee and dividing it by the 23 hours of attorney time

yields an effective hourly rate of $626.07, which is higher than the billed rate but

not exorbitantly so. Moreover, when the significant paralegal time billed in this

case is included in the calculation, bringing the total amount of time spent to 40.7

hours, the effective hourly rate becomes approximate to counsel’s claimed usual and

customary rate of $350. See Siraco v. Astrue, 806 F. Supp. 2d 272, 278 (D. Me.

2011) (discussing reasons to consider paralegal time spent on a case in evaluating

reasonableness of requested fee under § 406(b) and concluding that “the

reasonableness review contemplated by Gisbrecht has to do with the entire fee,

compared to the services rendered, and is not limited to the hours put in by

someone admitted to the bar”). And, as both Attorney Jackson and the Acting

Commissioner point out, the requested fee is within the range of fees previously

10 approved by the court even where counsel spent less time on the case. See, e.g.,

Levesque, 2020 WL 4350730 at *3 (awarding $11,120 where counsel and paralegal

billed 15.5 hours representing claimant before the district court); Giles v. Saul, No.

17-cv-659-PB, 2020 WL 836736, at *4 (D.N.H. Feb. 20, 2020) (awarding $13,280

where counsel and paralegal billed 17.5 hours representing claimant before the

district court); Mounce, 2016 WL 4444710, at *3 (awarding $21,900 where counsel

spent 43.80 hours representing claimant before the district court). Cut in any

direction, counsel’s requested fee is a reasonable increase over the lodestar figure

and in comparison to the time spent on the case. For those reasons, the court finds

that counsel’s requested fee of $14,399.50 is reasonable.

CONCLUSION

The court grants Attorney Jackson’s motion for attorneys’ fees (doc. no. 32) in

the amount of $14,399.50. As Attorney Jackson acknowledges she is required to do

in her motion, the court directs Attorney Jackson to refund the fee of $5,000 she

received under the Equal Access to Justice Act.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge October 19, 2021 cc: Counsel of Record