United States District Court, D. New Hampshire
Dennis M. Mounce
Carolyn W. Colvin, Acting Commissioner, U.S. Social Security Administration Opinion No. 2016 DNH 106
MEMORANDUM AND ORDER
Barbadoro Paul Barbadoro United States District Judge.
Elizabeth R. Jones seeks $37, 953.63 in attorney’s fees
for helping Social Security claimant Dennis Mounce win
past-due disability benefits. She has filed a motion to award
fees under 42 U.S.C. § 406(b), arguing that
either of two fee agreements she entered into with Mounce
entitle her to 25% of his past-due benefits. Both Mounce and
the Social Security Commissioner oppose her request, arguing
that the proposed fee is unreasonably high. Because I
conclude that the parties have not adequately addressed
whether Jones’s fee agreements entitle her to the
relief she seeks, I reserve judgment on the merits and ask
for further briefing as explained below.
Mounce first applied for disability benefits in 2007. Doc.
No. 14-1 at 1. His application was denied.
Id. The next year, in June 2008, Mounce applied
again for disability benefits, and in October 2008 he hired
Attorney Jones to represent him with his claim. Id.
at 1-2. At the beginning of the representation, Jones and
Mounce signed a contingency fee agreement. That agreement
applied only to Jones’s “representation through a
hearing before the Administrative Law Judge.” Doc. No.
17-1 at 6. It provided that Jones’s attorney
fee “shall be equal to 25%” of Mounce’s
past-due benefits “or the maximum fee specified by
42 U.S.C. 406(a)(2)(A)” or $5, 300,
“whichever is the least at the time of the ALJ
decision.” Id. If Mounce lost his claim, Jones
would be paid nothing. Id.
June 2010 hearing, the ALJ denied Mounce’s application.
Doc. No. 17 at 1. Without signing a new fee
agreement, but with Jones’s ongoing assistance, Mounce
appealed to the Decision Review Board. In October 2010, the
Board affirmed the ALJ’s denial. Doc. No. 1 at
2. Two months later, in December 2010, Jones continued to
represent Mounce by filing an appeal in this court. Doc. No.
1. Jones and the Commissioner completed briefing in
the case by May 2011. See Doc. Nos. 7, 9.
Then, in October 2011, after the parties had filed their
briefs but before I ruled on the case, Jones had Mounce sign
a second fee agreement. See Doc. No. 14-2 at 12.
second agreement had two “tiers.” The first tier
stated that if Mounce won “at any administrative
level” through the first ALJ decision after the date of
the agreement, Jones would receive either 25% of
Mounce’s past-due benefits or $6, 000, whichever was
smaller. Doc. No. 17-1 at 7. In other words, if the
court remanded the case and the ALJ subsequently awarded
benefits, Jones would receive either 25% of those benefits or
$6, 000. The second tier, however, provided a different fee
structure: if Mounce lost at the first ALJ decision after the
date of the agreement, and then wished to appeal, the
agreement stated that Jones “will ask SSA to approve a
fee no greater than 25% of all back benefits awarded in
[Mounce’s] case.” Id. In other words, if
the next ALJ decision was a denial, and Mounce wished to
appeal again to the Appeals Council or another entity, Jones
would not be subject to a $6, 000 cap, and would instead
“ask SSA to approve” up to 25% of any back
second agreement, unlike the first, also contained a
provision addressing attorney fees under the Equal Access to
Justice Act (EAJA). Id. It provided that “if a
court awards [Mounce] a fee under the Equal Access to Justice
Act, [Mounce] assign[s] them to [Jones].” Id.
The provision also noted that if Jones received both an EAJA
fee and a fee from Mounce’s back benefits, Jones would
refund to Mounce the lesser of the two sums. Id. The
agreement contained no other reference to Jones’s work
before the court. See id.
November 2011, less than a month after Mounce signed the
second fee agreement, I granted Mounce’s appeal and
ordered a remand. See Doc. No. 12. Jones then
represented Mounce at two more hearings before an ALJ. In
September 2013, the ALJ denied, yet again, Mounce’s
application. Doc. No. 14-1 at 2. Mounce chose to
appeal that ruling to the Appeals Council. Id. In
August 2014, the Appeals Council remanded the case to a new
ALJ for yet another hearing. Id.
preparing for that hearing in June 2015, Jones had Mounce
sign a third fee agreement. Doc. No. 17-1 at 8. That
agreement provided that if Mounce “won at any
administrative level through the first Appeals Council
decision after the date of this agreement, [Mounce] agree[s]
that the attorney fee will be 25% of all past-due
benefits.” Id. (emphasis omitted). Other than
an EAJA provision identical to that of the second agreement,
the third agreement did not mention compensation for
Jones’s work before the court. See id.
months after the third agreement was signed, in August 2015,
the ALJ approved Mounce’s claim and awarded him $151,
814.50 in past-due disability benefits. Doc. No. 14
at 2. In the decision, the ALJ attached a notice to Mounce
stating: “I do not approve the fee agreement between
you and your representative because [t]he fee agreement sets
a fee that is more than the lesser of 25 percent of the
past-due benefits or $6, 000.” Doc. No. 16-2
at 4. The notice provided instructions for reviewing this
determination. Id. Jones, however, did not request
review from the SSA. See Doc. Nos. 17; 16-1
on March 10, 2016, Jones filed a motion for attorney fees
with this court seeking 25% of Mounce’s past-due
benefits, or $37, 953.63, as compensation for work done
before the court. Doc. No. 14. A month later, on
April 13, 2016, the Commissioner filed a response opposing
Jones’s fee request. Doc. No. 16. As part of
her response, the Commissioner appended a letter that Mounce
had written in January 2016 to ALJ James D’Alessandro
asking D’Alessandro to deny Jones’s 25% fee
petition. See Doc. No. 16-3. The
Commissioner cited Mounce’s letter as one reason, among
others, why I should reduce Jones’s requested fee.
letter made a number of accusations against Jones. Mounce
claimed that he “always signed and resigned the same
basic fee agreement” with Jones and made no mention of
the three different agreements. Id. at 1. This
“basic” agreement, Mounce argued, provided that
Jones would receive “$5, 500-$6, 000, ” but only
if Mounce won his claim. Id. Sometime before he won
back benefits, however, Mounce was called into Jones’s
office to sign over a “$5, 000” check in
Mounce’s name from the SSA. Id. Mounce signed
over the check, but stated that he “did not
understand” why Jones was entitled to the money, since
he had not yet won his case. Id.
letter also described the events leading to the signing of
the third and final fee agreement. A week before his June
2015 hearing, Mounce explained, he and his wife met with
Jones at her office. Id. During that meeting, Mounce
claims that Jones said “we needed to sign another fee
agreement . . . stating she would receive 25% of the claim .
. . .” Id.
to Mounce, “this did not go over well, ” and
“my wife and I started to get very upset.”
Id. “My wife started crying and we did not
want to sign the paper we wanted to get up and leave.”
Id. Mounce alleges that Jones told them ...