Murkeldove v. Astrue

• Decision Date: 14 July 2009
• Docket Number: No. 4:08-CV-172-A.,4:08-CV-172-A.
• Parties: McClenon MURKELDOVE, Jr., Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Texas

635 F.Supp.2d 564

McClenon MURKELDOVE, Jr., Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 4:08-CV-172-A.

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

July 14, 2009.

COPYRIGHT MATERIAL OMITTED

Carl M. Weisbrod, Morgan & Weisbrod, Dallas, TX, for Plaintiff.

Mark T. Pittman, U.S. Attorney's Office, Fort Worth, TX, for Defendant.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Before the court for decision are an application of plaintiff, McClenon Murkeldove, Jr., ("Murkeldove"), and a supplemental request, for lawyers' fees under the Equal Access to Justice Act ("EAJA").¹ For the reasons given below, the court is denying the application and supplemental request.

I. Procedural Background and Factual Setting

A. Nature of this Action

Murkeldove filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his claims for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act. The administrative law judge ("ALJ") who heard Murkeldove's application at the administrative level decided against Murkeldove, finding that he was not disabled; and, the Appeals Council denied Murkeldove's request for review, leaving the ALJ's decision as the final decision of Commissioner.

This action, which was treated as an appeal from Commissioner's decision, was referred to the magistrate judge for findings, conclusions, and recommendation. On April 3, 2009, the magistrate judge returned the action to the undersigned with the recommendation that Commissioner's decision adverse to Murkeldove be reversed, and that the proceeding be remanded to Commissioner for further administrative proceedings consistent with the proposed findings of fact and conclusions of law of the magistrate judge. As recommended, on April 29, 2009, the court rendered a final judgment reversing Commissioner's decision and remanding to Commissioner for further administrative proceedings. The reversal and remand was of the kind contemplated by the fourth sentence of 42 U.S.C. § 405(g), with the consequence that the judgment of April 29, 2009, brought this action to an end. See Shalala v. Schaefer, 509 U.S. 292, 297-99, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).

B. Attempt by the Lawyers for Murkeldove to Pave the Way for a Future Award to the Lawyers of Fees Under 42 U.S.C. § 406(b)

On May 13, 2009, Carl Weisbrod ("Weisbrod"), of the firm of Morgan & Weisbrod, filed a document titled "Motion to Enlarge Time to File a Motion for Attorneys' Fees Under Section 406(b) of the Social Security Act."² Weisbrod gave, inter alia, the following explanations in the motion to enlarge:

[Murkeldove] is currently awaiting the remand process within the Social Security Administration which will include a remand to the ALJ. Following completion of the remand process, [Murkeldove] anticipates that his attorneys will seek attorneys' fees for services rendered both at the administrative and federal court levels.

....

... Only upon completion of all of the above will [Murkeldove] be able to determine whether any additional monies withheld from [Murkeldove's] past due benefits are available for 406(b) attorneys' fees and decide whether to pursue such fees.

Mot. to Enlarge at 1-2 (footnotes omitted). Weisbrod's stated reason for filing the motion was that the Fifth Circuit ruled in Pierce v. Barnhart, 440 F.3d 657 (5th Cir. 2006), that a motion for lawyers' fees under § 406(b) is governed by Rule 54 of the Federal Rules of Civil Procedure, requiring that such a motion be filed no later than fourteen dates after entry of judgment.

In potentially relevant part, 42 U.S.C. § 406(b) provides:

(b) Fees for representation before court

(1)(A) Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may, notwithstanding the provisions of section 405(i) of this title, but subject to subsection (d) of this section, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

42 U.S.C. § 406(b)(1)(A).

By order signed May 13, 2009, the court denied the motion to enlarge, noting that:

The plain language of the statute indicates that fees are available under § 406(b) only when (1) the court renders a favorable judgment to the claimant, (2) the court includes such fees as a part of the favorable judgment, and (3) the claimant is entitled to past-due benefits by reason of the favorable judgment.

May 13, 2009, Order at 2. By way of further explanation, the court called attention to a memorandum opinion and order the court signed April 2, 2009, in Case No. 4:02-CV-678-A (May 13, 2009, Order at 2 n. 2), which is now reported as Kellems v. Astrue, 611 F.Supp.2d 639 (N.D.Tex. 2009).³

C. Current Attempt by Weisbrod to Collect an Award of Fees Under the EAJA

On June 2, 2009, Weisbrod filed the application now under consideration titled "Plaintiff's Application for Attorney Fees Under the Equal Access to Justice Act" (hereinafter, "Application"). The part of the EAJA pursuant to which the application was made is § 2412(d)(1)(A), which provides:

(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphases added).

The premises of the application seem to be that Murkeldove was a prevailing party in this action by virtue of having successfully obtained a reversal of Commissioner's adverse ruling and a remand to Commissioner for further consideration, and that, because he was the prevailing party and Commissioner cannot prove substantial justification, Murkeldove's lawyers have an automatic entitlement to an award of reasonable lawyers' fees under the EAJA. Application at 1-2 & 6. An award of $9,521.50 is sought by the application, representing lawyers' fees of $9,171.50 and court costs of $350.00. There is no allegation in the application that Murkeldove has incurred, or will incur, any fees in this action.

Attached to the application as exhibits are, inter alia:

(1) Copies of fifteen orders rendered by judges in either the Fort Worth Division or the Dallas Division of this judicial district during the years 2006, 2007, and 2008 granting applications similar to the application under consideration. Four of the orders were rendered by the undersigned. None of the orders indicates that Commissioner contested any of the applications other than, in some cases, on the ground that the amount sought as lawyers' fees was unreasonable. None of the orders indicates that the court found that the plaintiff in the case to which the order referred had incurred any lawyers' fees. Many of the orders were agreed orders by which Commissioner agreed to the fee awards. The court believes it is correct in identifying the plaintiff's lawyer in each of the cases to which the orders relate as a member of the Morgan & Weisbrod firm. Ten of the orders, including two issued by the undersigned, direct that the awarded fee payment be made by Commissioner directly to the Morgan & Weisbrod lawyer rather than to the plaintiff.⁴

(2) Affidavit of Weisbrod. He says that his "usual fee arrangement with most of [his] clients is a contingent fee agreement." Application, Ex. F at 1. However, he fails to state the nature of his fee arrangement with Murkeldove. Nothing in the affidavit indicates that Murkeldove incurred any lawyer fee in connection with the legal work done on his behalf in this action. Weisbrod attaches to his affidavit itemizations of legal work done on behalf of Murkeldove in this action, but does not indicate that Murkeldove has, or will have any obligation to pay for any of those legal services. Nothing in the affidavit discloses the identity of the person (Murkeldove or Weisbrod) who would benefit from the fee if awarded.

D. Written and Verbal Explanations of Weisbrod of Intended Disposition of EAJA Fee Award if the Court Were to Grant the Application

On June 3, 2009, the court ordered Murkeldove, through Weisbrod, to file a document explaining what he plans to do with the fee award if the application were to be granted. The explanation given by Weisbrod in a document filed June 8, 2009, was, in its entirety, as follows:

Any EAJA award made to the plaintiff in this case will be paid to his attorneys of record, Morgan & Weisbrod, which plans to keep any portion of the award that remains after appellate counsel, William Fouche, who wrote Murkeldove's briefs on the merits, is paid for his work herein. If Murkeldove ultimately prevails on the remand of his claim to the Social Security Administration, then the EAJA fee award will be credited in full against any subsequent fee application made under 42 U.S.C. § 406(b).

Notice of Planned Action at 1.

For clarification, the court held a telephone conference/hearing on July 7, 2009, with Weisbrod, William Fouche ("Fouche"),⁵ ...