Dennis W. Black v. Richard A. Culbertson, Commissioner of Social Security

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 27, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-14720
Non-Argument Calendar
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Docket No. 6:07-cv-01304-JA-GJK
DENNIS W. BLACK,
Plaintiff-Appellant,
versus
RICHARD A. CULBERTSON,
Interested Party-Appellee,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 27, 2012)
Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.

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PER CURIAM:
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). No reversible error has been
shown; we dismiss in part and affirm in part.1
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 and
supplemental security income. 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.2
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.
Black’s motion to file excess pages for reply brief is granted.1
Culbertson also received $2,064.49 in EAJA fees based on his successful representation of Black2
in an earlier related case against the Commissioner.
2

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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 an3
award of attorney’s fees for an abuse of discretion. ACLU of Ga. v. Barnes, 168
F.3d 423, 427 (11th Cir. 1999).
We dismiss as moot Black’s argument that the magistrate judge abused his discretion in striking3
Black’s objections to the initial R&R because the magistrate later filed a second amended R&R, gave
Black the opportunity to object, and did not strike Black’s objections. See Brooks v. Ga. State Bd.
of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) (stating that we lack jurisdiction “to decide
questions which have become moot by reason of intervening events”).
3

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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. Jackson
v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (citing 42 U.S.C.
§ 406(b)(1)(A)). 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.
4

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Thus, we see no abuse of discretion in the district court’s award of attorney’s fees
under section 406(b).
We reject Black’s assertion that because Culbertson had already received
attorney’s fees under the EAJA, the award of attorney’s fees under section 406(b)
was barred by res judicata. Culbertson could not have requested authorization to4
charge attorney’s fees as part of the earlier petition for EAJA fees because the
Commissioner had not yet awarded Black past-due benefits on remand. Moreover,
the award of attorney’s fees under the EAJA and under section 406 do not
constitute the same cause of action. See Shurick v. Boeing Co., 623 F.3d 1114,
1116-17 (11th Cir. 2010) (explaining that a claim is barred by res judicata
“whenever (1) a court of competent jurisdiction has (2) rendered a final judgment
on the merits in another case involving (3) the same parties and (4) the same cause
of action.”).
We also reject -- as unsupported by the record -- Black’s following arguments: (1) that the4
district court did not reverse the Commissioner’s decision; (2) that the court awarded Culbertson fees
for Black’s administrative proceedings; (3) that Culbertson stole Black’s identity to file the petition
for fees; and (4) that Culbertson sought to collect a fee in excess of that allowed under section 406.
In addition, nothing required Culbertson to obtain Black’s permission before requesting
authorization to charge attorney’s fees or for Culbertson to continue representing Black after Black
objected to the award of attorney’s fees. We also reject Black’s due process argument because Black
was notified of Culbertson’s request and was given an opportunity to object to the award before the
district court adopted the magistrate’s second amended R&R.
5

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Black also argues that the magistrate judge abused his discretion in denying
Black’s motion for an enlargement of time to respond to Culbertson’s motions.
We review a district court’s interpretation and application of its local rules for
abuse of discretion. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir.
2009). Local Rule 3.01(g) requires a party “filing any motion in a civil case” to
confer with opposing counsel, to certify in his motion that he conferred with
opposing counsel, and to state whether counsel agreed on the resolution of the
motion. M.D. Fla. Rule 3.01(g). Pro se litigants are required to conform to such
procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
Because Black did not confer with Culbertson or certify that he did so in his
motion for an enlargement of time, the magistrate did not abuse its discretion in
denying the motion for failure to comply with Local Rule 3.01(g).
DISMISSED IN PART; AFFIRMED IN PART.
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