Offset Applicable for Entire Work of Attorney During Litigation, Not Just Discrete Work.
Parrish v. Comm’r of Social Security Administration, Case No. 11-35332 (9th Cir. Nov. 5, 2012) (published) is an interesting case involving the interaction of Social Security Act (SSA) and Equal Access to Justice Act (EAJA) provisions allowing attorneys to receive fees for successfully representing Social Security benefit claimants.
Above: New Social Security board member primps. August 23, 2937. Library of Congress.
SSA, 42 U.S.C. § 402(b)(1), limits fee recovery for attorneys representing successful claimants in federal court to 25% of the total past-due benefits conferred by the judgment, because the recovery comes out of the claimant’s benefits. In contrast, EAJA, 28 U.S.C. § 2412(d)(1)-(2), allows fee recovery to the successful attorney determined by the time expended and the attorney’s hourly rate, subject to a specified cap, with the fees being paid by the government. However, because attorneys accepting an award above the section 402(b)(1) cap were subject to possible criminal sanctions under section 402(b)(2), Congress amended the EAJA in 1985 to add a savings provisions allowing attorneys to receive fees under both SSA section 402(b) and EAJA section 2412. (Pub. L. No. 99-80, § 3, 99 Stat. 183 (1985) (uncodified.) But there is an important rub to this savings provision: a lawyer must offset any fees received under EAJA with any award that the attorney receives under SSA if the two were for the “same work”–adopted in order to avoid giving double compensation to attorneys.
In Parrish, controversy centered on this “same work” construct. The district court clearly awarded attorney a total fee award of $11,575 under EAJA (the aggregate of two awards), with the winning attorney filing a motion to seek $9,059.89 in fees under SSA (the statutory 25% maximum). Attorney requested a deduction of the first EAJA fee award of $6,575, but not the second EAJA fee award of $5,000. However, the district court found that both EAJA awards should be deducted, which exceeded the $9,059.89 SSA fee award such that no additional fees were warranted.
Attorney appealed, primarily arguing that only his work on the second appeal (not a successful first one) should be considered for offset purposes. The Ninth Circuit disagreed, determining that an attorney’s work throughout the case in representing a client should be considered under the “same work” construct. It found that the district court had correctly made the right deductions. Affirmed.