Omayra Acosta v. Commissioner Social Security

BLD-144 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1454
___________
OMAYRA ACOSTA,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:18-cv-04943)
District Judge: Honorable Berle M. Schiller
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 5, 2022
Before: MCKEE, GREENAWAY, Jr., and PORTER, Circuit Judges
(Opinion filed: May 20, 2022)
_________
OPINION *
_________
PER CURIAM
Omayra Acosta appeals pro se from a post-judgment order of the District Court
granting her attorney’s petition for fees under 42 U.S.C. § 406(b). Acosta’s attorney,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Robert Savoy, has moved for summary affirmance. For the reasons stated below, we
grant Savoy’s motion and will summarily affirm the District Court’s judgment.
I.
In 2018, after exhausting administrative remedies, Acosta filed an action in the
District Court seeking disability benefits under Title II of the Social Security Act. The
District Court entered judgment in favor of Acosta in 2020, after which Acosta moved for
attorney’s fees under the Equal Access to Justice Act (“EAJA”), see 28 U.S.C. § 2412,
and was awarded $3,556.97. On remand, the agency concluded that Acosta was entitled
to benefits and awarded her $97,213.00 in back-due benefits. Savoy then moved for fees
under 42 U.S.C. § 406(b), providing documentation of a fee agreement between Savoy
and Acosta and a description of 17.1 hours of work performed on the case. Acosta did
not respond, and the Commissioner of Social Security filed a response neither supporting
nor opposing the fee request. The District Court granted Savoy’s motion and awarded
the requested $18,303.25 in fees or 25% of past-due benefits—whichever was less—to be
offset by the EAJA award. With the EAJA offset, the amount payable from Acosta’s
recovery was $14,746.28. Acosta appealed, and Savoy has moved for summary
affirmance. 1
II.
1
Although Acosta and the Commissioner of Social Security are the parties to this action,
the real party in interest here is Savoy, whose fee award Acosta challenges on appeal.
See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002).
2
We have jurisdiction under 28 U.S.C. § 1291 and review a district court’s decision
regarding attorney’s fees under 42 U.S.C. § 406(b) for abuse of discretion. See Fields v.
Kijakazi, 24 F.4th 845, 852 (2d Cir. 2022). “A district court abuses its discretion when
(1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its
decision . . . cannot be located within the range of permissible decisions.” Id. (internal
quotation marks and citation omitted). We may summarily affirm the District Court’s
decision “on any basis supported by the record” if the appeal fails to present a substantial
question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
III.
Under 42 U.S.C. § 406(b), a court “may allow ‘a reasonable fee . . . not in excess
of 25 percent of the . . . past-due benefits’ awarded to the claimant.” Gisbrecht, 535 U.S.
at 795 (quoting § 406(b)(1)(A)). “Within the 25 percent boundary . . . , the attorney for
the successful claimant must show that the fee sought is reasonable for the services
rendered.” Id. at 807. In determining whether a fee is reasonable, courts consider: (1) the
character of the representation; (2) the results achieved; (3) whether the attorney was
responsible for any delay; and (4) whether the benefits are large in comparison to the
amount of time spent on the case. Id. at 808. A district court making a fee determination
must also consider “the primacy of lawful attorney-client fee agreements.” Id. at 793.
In a letter accompanying her notice of appeal, Acosta suggests—for the first
time—that the fee award is unreasonable in relation to the work performed. We
3
generally do not consider arguments raised for the first time on appeal, see Simko v. U.S.
Steel Corp., 992 F.3d 198, 205 (3d Cir. 2021), cert. denied, 142 S. Ct. 760 (2022), but
regardless we discern no abuse of discretion in the District Court’s award, which was
consistent with the principles discussed in Gisbrecht. Namely, Savoy’s representation
before the District Court achieved a positive result for Acosta and led to a substantial
award of past-due benefits. There is no indication that Savoy was responsible for any
delay in Acosta’s case; on the contrary, it appears that his representation was efficient
and effective. Further, Acosta agreed that Savoy could seek a fee of up to 25% of past-
due benefits awarded, less any fee awarded to Acosta’s administrative representative, if
the District Court or SSA were to determine that she was entitled to benefits. The
$18,303.25 sought by Savoy was within that threshold. 2 We cannot say that the District
Court’s decision—particularly in the absence of objections from Acosta or the
Commissioner—to award Savoy that amount, less the EAJA fees previously awarded,
amounted to a clear error of judgment.
Accordingly, we will affirm the District Court’s judgment.
2
On remand, the SSA withheld 25% ($24,303.25) of the past-due benefits, $6,000 of
which were awarded to Acosta’s administrative representative. The remaining
$18,303.25 constituted approximately 18.83% of Acosta’s past-due benefits.
4