Kellems v. Astrue, 4:02-CV-678-A.

• Decision Date: 02 April 2009
• Docket Number: No. 4:02-CV-678-A.,4:02-CV-678-A.
• Citation: 611 F.Supp.2d 639
• Parties: Kenny KELLEMS, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 639

611 F.Supp.2d 639

Kenny KELLEMS, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 4:02-CV-678-A.

United States District Court, N.D. Texas, Fort Worth Division.

April 2, 2009.

Jennifer L. Fry, Morgan & Weisbrod, Dallas, TX, for Plaintiff.

Clayton Ray Mahaffey, U.S. Attorney's Office, Fort Worth, TX, for Defendant.

CORRECTED MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

(This corrected memorandum opinion and order corrects and replaces the memorandum opinion and order signed in the above-captioned action on March 30, 2009.)

Came on for consideration the motion of Jennifer L. Fry ("Fry"), who says she is attorney for plaintiff, Kenny Kellems, for an award of attorney's fees under 42 U.S.C. § 406(b). Having considered the motion, the response of defendant, Michael J. Astrue, Commissioner of Social Security, ("Commissioner") and the applicable authorities, the court concludes that such motion should be denied.

I. History of the Above-Captioned Action

The above-captioned action was commenced on August 12, 2002, by the filing by attorney Gal Lahat ("Lahat") for plaintiff of a bare-bones complaint seeking reversal of a decision of Commissioner to deny plaintiffs application for disability insurance benefits, and to award to plaintiff the benefits to which he was entitled. Commissioner answered the complaint on January 28, 2003. On April 25, 2003, plaintiff, through Lahat, filed his brief urging the court to reverse the decision of the administrative law judge ("ALJ") and award plaintiff disability benefits or, alternatively, to reverse the ALJ's decision and remand pursuant to sentence four of 42 U.S.C. § 405(g). Pl.'s Br. at 27.

Rather than to file a response to plaintiffs brief, Commissioner filed on June 24, 2003, an unopposed motion asking the court to reverse Commissioner's ruling against plaintiff and remand to Commissioner for further proceedings as authorized by the fourth sentence of § 405(g), explaining:

4. [Commissioner] respectfully submits that an order of remand for further administrative proceedings requires the entry of a judgment that ends the instant action. The entry of a judgment that ends the instant action is required by the fourth sentence of 42 U.S.C. § 405(g). See Shalala v. Schaefer, 113 S.Ct. [2625] at 2629[,125 L.Ed.2d 239 (1993)]. A proposed judgment is provided herewith.

[Commissioner] therefore requests that the Court reverse and order a remand of this case for further action pursuant to the fourth sentence of 42 U.S.C. § 405(g).

Mot. to Reverse & Remand at 3-4. As the motion requested, the court ended this action by signing on June 26, 2003, the proposed judgment provided by Commissioner with the motion. The judgment ordered that the matter "be remanded under the fourth sentence of 42 U.S.C. § 405(g) to the Commissioner of Social Security for the purpose of conducting further proceedings." As of that point in time, this court had done nothing substantive in this action other than to grant what amounted to the joint motion of the parties to reverse and remand.

On July 28, 2003, plaintiff, acting through Lahat, filed an application for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. He argued that he was the prevailing party and, therefore, was eligible for an award of attorney's fees under § 2412(d)(2)(B). Plaintiff sought an award of $7,156.53 as attorney's fees, based on 48.15 hours of work, plus court costs in the amount of $150.00, for a total of $7,306.53. Plaintiff alleged in the motion that he had directed that any award of fees and costs be paid directly to Lahat.

Commissioner responded to the application, acknowledging that counsel for plaintiff was entitled to compensation for legal services rendered, but urging that the court calculate the award based on approximately 30 hours of work, contending that the claimed attorney time was excessive for the work actually done. Commissioner suggested that the fee award under § 2412 should be limited to $4,466.33 for 30.05 attorney hours.

On August 26, 2003, plaintiff replied to Commissioner's response, urging that the court consider the following legal standard in determining the amount to award:

EAJA does not cap hours arbitrarily (although it does cap rate). It relies instead on the flexible and familiar notion of "reasonable attorney fees," a rule highly dependent on the needs and circumstances of the individual case. Hensley v. Eckerhart, 461 U.S. 424, 429[, 103 S.Ct. 1933, 76 L.Ed.2d 40] (1983). Although the Objections largely steer clear of these matters, whether work is reasonable depends on Mr. Kellems's facts and circumstances, the quality of Plaintiffs brief, and what its preparation reasonably required in light of the applicable standard of care for appellate work . . . .

Pl.'s Resp. at 4-5 (footnotes omitted). The court accepted plaintiff's reasoning and claim by awarding plaintiff as a reasonable fee award the exact amount requested. On August 27, 2003, the court signed a judgment awarding plaintiff recovery from Commissioner of $7,306.53 as attorney's fees and expenses.

On September 11, 2003, plaintiff filed a motion to amend and/or alter the fee award judgment for the purpose of adding a recovery by plaintiff against Commissioner of $1,841.40 incurred by plaintiff in litigating the attorney fee issue, making a total of $9,147.93. On October 6, 2003, the court granted the newly filed motion by signing a corrected judgment, ordering that the fee award judgment be corrected to show a recovery by plaintiff from Commissioner of the exact amount claimed by plaintiff, $9,147.93.

Nothing further occurred in the abovecaptioned case until almost five and onehalf years later when on March 16, 2009, the court received the document Fry filed titled "Motion for and Memorandum in Support of Award of Attorney Fees Under the Social Security Act," which is the motion now under consideration. Commissioner responded to Fry's motion for an award of attorney's fees by complaining that it is untimely and that the amount sought is excessive.

II. The Allegations of, and Claims Made, by Fry's Motion

Shortly before she filed the motion at issue, Fry filed, on February 18, 2008, in this action a notice of substitution of counsel, reciting that she is substituting for Lahat in this case. She alleges in her motion that she is a partner with the law firm, Morgan & Weisbrod, L.L.P., that Lahat was with when he was representing plaintiff in this case and that when Lahat stopped practicing law on June 4, 2008, he gave the law firm a letter dated May 7, 2008, saying that all fees owed to him are, and continued to be, the property of the law firm.

Fry seeks by her motion "an award of attorney's fees in the amount of $22,266.38, to be certified for payment out of Plaintiffs past due benefits under the Social Security Act, 42 U.S.C. § 406(b)." Mot. at 13. She alleges that the $22,266.38 award she seeks is one-fourth of the past-due benefits awarded to plaintiff by Commissioner in the administrative proceedings that followed after plaintiffs claim was remanded by this court to Commissioner. She makes reference in the motion to the letter from Commissioner dated August 6 2006, giving plaintiff notice that the determination had been made that he was entitled to benefits and giving him information as to the benefits he is to receive. Mot., Ex. C. Included in the letter are the following explanations:

Information About Lawyer's or Representative's Fees

When a lawyer wants to charge for helping with a Social Security claim, we must first approve the fee. We usually withhold 25 percent of past due benefits in order to pay the approved lawyer's fee. We withheld $22,266.38 from your past due benefits in case we need to pay your lawyer.

• If all the work on this case for you and your family is finished, and your lawyer wants to charge a fee, a request to have it approved should be sent to us right away.

• If all work is not finished in this case, the lawyer should let us know that a fee will be charged. This must be done within 60 days of the date of this letter.

• If the lawyer will not charge a fee, a statement saying so, signed and dated by the lawyer, should be sent to us instead.

When the amount of the fee is decided, we will let you and the lawyer know how much of this money will be used to pay the fee. We will send any remainder to you. If the approved fee is more than the money we have withheld, the Social Security Administration is not involved in paying the rest of the fee.

Id. at 3.

According to Fry's allegations, her entitlement to a fee award of $22,266.38 is based on exactly the same 60.55 hours for which plaintiff already had received an award from this court of $9,147.93 by the corrected fee-award judgment the court signed October 6, 2003. Mot. at 3. Most of the text of Fry's motion appears to be boilerplate language that she and her firm undoubtedly have used in similar motions filed in other cases. She attaches as Exhibit I to her motion a series of orders members of her firm have persuaded other district judges and magistrate judges to sign.

Fry does not disclose to the court that an attorney for plaintiff already successfully had pursued the fee claim procedure spelled out in the August 6, 2006, notice-ofaward letter quoted above, thus leading the court to believe that no payment had been received by any attorney for plaintiff by pursuit of that procedure. By requesting the court to award to her the full $22,266.38 withheld from plaintiffs award of past-due benefits, Fry quite clearly conveys to the court that plaintiffs counsel had not received through any claim at the administrative level any part of the withheld $22,266.38. The implied representation of Fry's motion is that this court has the authority to, and should, award to Fry the full $22,266.38. For example, Fry alleged:

Movant has received notice from the Social Security...