Richard H. Green v. Commr. of Social Security , 390 F. App'x 873 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15211 ELEVENTH CIRCUIT
AUGUST 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00460-CV-ORL-18UAM
RICHARD H. GREEN,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 2, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Richard H. Green, through his attorney Richard A. Culbertson, appeals the
district court’s order partially granting Culbertson’s request for attorneys’ fees
under the Social Security Act, 42 U.S.C. § 406(b). Although the magistrate judge
awarded Culbertson attorneys’ fees under § 406(b), he declined appellant’s request
to reduce his § 406(b) fee with a smaller fee previously awarded under the Equal
Access to Justice Act (“ EAJA”), concluding that strict compliance with the EAJA
Savings Provision instead required Culbertson to refund the smaller EAJA fee and
accept the § 406(b) fee in full. Green challenges that ruling in this appeal.
In the intervening months after Green filed this appeal, our Court decided
Jackson v. Commissioner of Social Security, 601 F.3d 1268 (11 th Cir. 2010),
which squarely controls this case. In Jackson, we held that the EAJA Savings
Provision does not mandate a specific procedure for refunding the smaller of the
two attorneys’ fees when a prevailing claimant recovers fees under both the EAJA
and 42 U.S.C. § 406(b). 601 F.3d at 1272. Thus, we reversed the district court,
which had held that the EAJA Savings Provision required it to award the full 25%
of a claimant’s past-due benefits in order to require the attorney to refund the
EAJA fee. The district court made the same error here in denying Culbertson’s
request to deduct the EAJA fee from his § 406(b) fee and award him the difference.
Jackson made plain that “the attorney may choose to effectuate the refund by
deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. §
2
406(b) request.” Id. at 1274. Accordingly, we reverse and remand for further
proceedings consistent with Jackson and this opinion.1
REVERSED AND REMANDED.2
1
We decline to address the Commissioner’s argument that the district court erred
in calculating Green’s § 406(b) fee by failing to include in its calculus the $5,300.00 already
paid to Green’s administrative attorney under § 406(a) because the Commissioner failed to file a
cross-appeal raising the issue. See United States v. Am. Ry. Express Co., 265 U.S. 425, 435–36,
44 S. Ct. 560, 564 (1924) (although a party may raise any argument in support of a judgment, a
party who has not appealed may not bring an argument in opposition to a judgment or attack the
judgment in any respect); Campbell v. Wainwright, 726 F.2d 702, 704 (11th Cir. 1984) (a party
who has not appealed may not “hitch a ride on his adversary’s notice of appeal” to “enlarge his
rights under the judgment or diminish those of the opposing party”).
Nor do we address Green’s argument that the § 406(b) fee awarded by the magistrate
judge was unreasonable because it exceeded the amount agreed upon by the parties. This
argument is based on a mischaracterization of the fee agreement, which provided that the §
406(b) fee would be 25% of the past-due benefits. Contrary to Green’s suggestion, the § 406(b)
fee set by the agreement would produce the same net dollars for the attorney as would the
magistrate’s order. Viewed in this light, Green’s reasonableness argument is nothing more than
a circular reprise of his disagreement with the magistrate judge’s interpretation of the EAJA’s
Savings Clause and his refusal to apply the EAJA fee to the §406(b) fee, which is resolved by
Jackson in Green’s favor.
2
Appellant’s request for oral argument is DENIED.
3