good morning good morning your honor my name is richard a culbertson representing the appellant's the primary issue in this case is what factors can be considered appropriately considered by the district court in determining what a reasonable fee is for an attorney representing claimants in the federal court may begin by asking you a question from your brief on on page a you say that you were your fees were limited to twelve point seven percent thirteen point eight percent seventeen percent and twenty point five percent which case is the which percentage go with ok your honor in the car try seventeen point five percent issues thirteen point eight percent is westfall in twenty two point six percent is wo d those are not the those are not the percentages you gave in your brief are they  i think the percentage i think the percentage is you gave in your brief or twelve thirteen seventeen and twenty but but anyway this is what you're saying they promised me when went i went to law school i wouldn't have to be good at math they lied to me and i'm not good at math so i may have gone back and recalculated the figures but the point is every one of the fees requested was substantially less than twenty five percent well so twenty five percent of pass do it benefits and our car our car k if i'm saying that correctly would be seventeen thousand two hundred sixty one dollars and seventy five cents right seventy five yes so based on what i understand you got what words for schuster the number i have as a twenty five percent of pasty benefits would be fifteen thousand six hundred ninety five dollars and twenty five cents that sounds about right your honor ok so the only one i don't know how you see say looking at what i understand you have been awarded i just don't get where you get these numbers the seventeen reasonable fee for work in the federal court is under for a six b that's all for a six b is what what is a reasonable fee that's the court's responsibility and and  responsibility to refund the lower of the age of fifteen or the four zero six beefy which i did that in every one of these cases this court said in jackson that it's appropriate for the attorney to say my client agreed to pay twenty five percent i'm subtracting the age of me this is what i meant for a sixty fees well nothing in jackson to my knowledge indicated that you don't add in the amount of the ija award in calculating what is twenty five percent do you disagree with me you think jackson said you ignore the amount that was paid under each jackson said it's not the district court's responsibility that it's the attorney's response at least not my question but no i'm again the i'm i'm required to under my feet agreement under jackson under the just saving supplies i'm required to reduce the amount that i request by the amount of the ija fees that was done in every one of these case and just while i've got you you do you agree or disagree that this panel is beyond by dawson whether or not you agree with dawson many many years ago when the score was and the fifth circuit we said that the combination of fees can't exceed twenty five percent i mean in that what it said the facts of doesn't want dealt more with how much of the past two benefits could be used to pay the fee because in dawson the attorney was holding fifty percent of the claimants past due money had the attorney got involved at the federal court level his fee agreement provided for fifty percent of the claimants passthrough money for representing the client in federal court i'm reading from dawson we are fully convinced that forty two united states code for a six precludes the aggregate allowance of attorney's fees greater than twenty five percent of the past due benefits received by the claimant dawson has already been authorized by the secretary to charge the some out he is entitled to know more but you're right that the the language at the end is very imprecise but what that's relating to the aggregate of the fees was yes the four or s beefy and how much of that would be paid out of the claimants benefits that that wasn't your normal right run of the mill case where the commissioner had not determine the four o six a fees or where they combined would be less in that case the attorney was holding he'd already gotten twenty five percent he was holding twenty five percent of the claimants past due benefits any fees the dawson court awarded was going to come out of the claimants past due benefits and increase it by more than twenty five percent as earlier also in dawson the court indicated the two reasons for the amendment did authorize the attorneys  payments out of the past due benefits and limit them to twenty five percent one of the purposes was so as not to dilute the claimants past due benefits to more than twenty five percent the congressional intent was not to limit the total number he stated twenty five percent was to stop deluding the claimant's benefits in dawson or warding any a fee would dilute the claimants benefits because the attorney was holding that money nowadays that can't happen in the commission will tell you the commission or all of the twenty five percent i don't hold any of the claimants back to benefits commission holds twenty five percent and will not pay more than twenty five percent to the attorneys regardless of the amounts that are authorized by the court and by the commissioner let me you argue at page thirty six of your brief and really elsewhere and i think maybe right yeah yeah sure and ok but now it seems to me that that issue is not present in any one of these pole cases before us because in each of these cases in each of these cases yes that under the fee agreement and under the savings clause my favorite in that says i'm entitled to twenty five percent of their past due benefits for the work done in ok then you could however follow that same work in district co you could get so many a j a fees yes sure and that could exceed twenty five percent yeah sure and that's what you would love to have as the law but we don't have a case none of the full cases before us present that situation it seems to me and show me where i'm wrong exactly what it should do in a couple of the cases it said i can't tell you how much for six b for the you you might probably get because you have you still open with getting mol fees and they completely discretionary and certainly not and says the district court can't wait in order to make sure that you don't violate dowson and for we can tell the lawyer who is before us that if he wants for all six beef the condition is he cannot seek full six safeties can we not do that that would be a six b fees on to nelson is that not correct no your honor again there's two different things there is how much the court can authorize for a fee under four six b and then there's how much of that fee is going to be paid out of the claimants past due benefits and again under four or six b the court is authorized can authorize a fee up to twenty five percent now if like as you said if the administrative attorney has already gotten twenty five percent and  were i don't know about and again many of these cases other attorneys are involved at the administrative level so if they're paid first out of the twenty five percent of the past who benefits even though the court may authorize a fee i'm not going to get paid because if the twenty five percent is gone i just don't get paid so there's two issues there's authorizing the fee and then how much of the fees paid out of the claimants benefits and that's again that's what dawson was d don't believe that's the facts before the dawson court again of your very beginning dawson to fifty percent and this could never happen today the under forty two u s c four zero seven these fees are not assignable i can't take my clients due benefits the commissioner holds twenty five percent for attorney's fees and that's it regardless of what the commissioner authorizes and what i think i understand you opine your point is that it was not good in dallas and dawson doesn't say that in every case the district court has to include the four zero six a fee and indeed even know what the four of six a fee is if if it's going to result in more than twenty five percent of the claimants benefits being used yes that's what dawson had to protect the claimant there because the attorney had the other twenty five percent and i don't have that twenty five so that's not the case here the courts don't need to protect the claima good morning good morning me please the court i'm rebecca ring and i represent the social security administration i'm also here and i qualify trustee position to represent the interest of all of the claimants in this case because as we've discussed ultimately the money in these attorney fees comes out of and reduces the amount of benefits that the claimants will receive i think this cases touch on circumstances dawson held that under four o six fees can not be allowed greater than twenty five percent of the past due benefits that places a limitation on the combination for six a fees and for six b fees not to exceed twenty five percent now in the dawson case yes the attorney was holding the fees but even now while the agency withholds twenty five percent of the past due benefits to directly pay attorney fees if awarded if this court or the district court were to award say more than twenty five percent of a person's past due benefits there's nothing that precludes the attorney from going to their client to get that remaining amount that exceeds twenty five percent so we're still in a position where we need to protect the interest of the claimants and their past d the standard the agency applies is the standard in the statute your honor that it's a reasonable fee and there's several factors that the individual administrative law judge considers based on that case those factors do not require the agency to limit it to twenty five percent although the amount of past due benefits is a factor that's considered under that fee petition process have you if example where i have seen it but i know there is nothing under the regulations that would prevent it thank you so under dawson the first thing that the district court has to look at ingraining for six b fees is has there been for zero six a fees issued because if there has been that pot of money that's available for four six b fees would be reduced in doing that as you said the district court has to ensure that the combination of for six am for sixty fees does not exceed twenty five percent of the past year benefits so by and i want to turn in touch about the ija fees we understand and agree that in jackson this court held that why don't we go ahead right now a lawyer and the client the litigants before that covert what they can do and what they can do in that regard or almost the same thing condition the receipt of twenty five percent of the agency counsel to make sure they went back to the agency and form the agency that mr colbert think could not seek a fee from the agency they said if we just write that so that too far i think as long as the district court's instructions does not infringe on the agency's own actions to award fees that would be permissible by the way if you don't mind if i interject here the magistrate judge express order does no such thing i mean the the measure just so that was not what he was doing and he was merely trying to control the parties before him not trying to reach out and direct the conduct of the commissioner so i mean can't we just accept him it is word on that think of weeks as as wart were an argument was just to the extent that the order did direct the agency not to award fees that we would agree that that's not means clause states that the attorney must refund the lesser of those to feel used to avoid double compensation for that representation and the starting point before subtracting they have two options now because of the holding in jackson if the attorney requests to have a net fee calculated the court can subtract out the agency and order the agency to issue that net out of the past benefit or if the council does not request a net fee the court issues an order for that full amount of four six b fees the agency issues a check out of the past due benefits to the attorney and then the attorney is responsible for refunding that lesser ija fee to the claimant and i think if we look at wood where we actually have a fees and look at the calculations there that the method that mr culbertson is trying to use ultimately ends up taking more benefits away from the claimant then the method under the savings clause in that case the would have received eight thousand five hundred ninety five dollars and seventy five cents was twenty five percent of benefits under the traditional method mr colbert's it was seeking that full twenty five percent but you have to first take out the a fees that had already been awarded which leaves five thousand seven hundred thirty dollars and seventy five cents sort of in that pot for four of six feet under the traditional method if the court found that that full amount was reasonable then the claimant would receive past you've been if it's would be awarded to mr culbertson of five thousand seven hundred thirty dollars and seventy five cents and then mr culbertson would have to hundred twenty three dollars and forty eight cents because he had to give back that egypt under his method of not counting for the four six a fees and just taking the ija fees out of the twenty five percent the beneficiary ultimately loses more money because mr colbert sin is asking for four thousand four hundred eighty eight dollars as b fees but then would be keeping the four thousand dollars in  and the beneficiary would also be out the two thousand eight hundred sixty five dollars and four six eight fees so ultimately between the ija and the four six fees the claimant would end up paying over eleven thousand dollars when his past due benefits of twenty five percent is only eight thousand five hundred ninety five dollars that was very helpful like you want me much so ultimately what the district court did could not go that far because a fees had not been awarded be keeping and not and paying back the ija fees but in a hypothetical circumstance if the four twenty five percent had been awarded under a fee then the attorney at federal court could still seek ija feeling get an awar fees but again ija fees are paid by the government so the beneficiary would still not be paying out of their pocket any more than twenty five percent of our case and dicta suggested that that should not be we might possibly have a case that does that process i slip for the reason that the governments pay and pay for and it doesn't take money from the beneficiary it is just enclosing the commissioner's position is that the district court did not abuse its discretion and would a car k or she used her in both the calculations and the x remedy they employed for the fact that mr culbertson had or no attorney had yet to speak for six a feast thank you for your time thank you point in determining a reasonable for a six beefy is to subtract a four o six safety and there based on dawson dawson does not no way say that dawson only says the four zero six beefy and the were thirty five thousand twenty five percent was eight thousand five hundred ninety five the ija fees were four thousand one hundred seven dollars and twenty seven cents so the  attorney subtracted the ija fees from the twenty five percent and the agreed fee was four thousand four hundred eighty eight dollars when you combine that fee requested with the four zero six  cut it only twenty two point six percent of the claims passed to benefit the clip claimant would still good get a refund in the attorney's not george in more than twenty five percent but when you force subtracting the first the court cut the fee down to sixteen hundred twenty three dollars which again that's dawson isn't saying he should go less than twenty five percent dawson just says you can't go more than twenty five percent and as a result of doing that beefy and it reduces the amount of the past due benefits that can be used for attorney fees down to again i'm not real good with math but it's about thirteen percent so it's defeating the purpose as set forth in dawson the purpose of these amendments by congress was to make sure that twenty five percent can be used for the past the benefits can be used for the the attorney fees not less and that's that unit when you force that  not the only attorney in for example westfall had five attorneys there were three other attorneys at the administrative level how can the court you know control and enter an order saying that the commissioner can't authorize them fees for work done at the administrative level these are two different levels that they were just talking about a fee for work in the federal court the claimant also may need to hire an attorney at the administrative level which again is under the commission so i am going to make you do math ok so you the four for six b fees awarded were four thousand four hundred eighty eight dollars and change no your honor that was the fee requested but the next court and then you make sure that the two if the four of six a fees already been awarded you make sure those two don't exceed twenty five percent and that's not what the court did because if they did if they done that then the court would have approved the fee in would the four thousand four hundred because the four or six am for sixty combined did not exceed twenty five five percent out of the benefits which the beneficiary receives if that were the controlling factor in would th do not exceed twenty five percent but you got twenty five percent i mean you got eight thousand five hundred ninety five dollars and change  certainly you got the one thousand six hundred twenty three dollars and change which was your four zero six b request minus the four zero six a award right one thousand six hundred twenty three dollars and change one thousand six hundred twenty three dollars for zero six beefy ok ok four zero six a fee was two thousand eight hundred seaters so that adds up to four thousand four hundred eighty nine dollars ok and then you got the award in the amount of four thousand one hundred seven dollars and twenty seven cents but dawson to know but i'm to say and you got those three amounts that add up to ija award of four thousand one hundred seven dollars and change and the four is six and a award of two thousand eight hundred sixty five dollars you got all three of those ok i understand your argument thank you thank you we appreciate the presentation thank you and now you can call the case