1

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

SHANNA E. SIEBERT, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 09-194-E 

 ) 

MICHAEL J. ASTRUE, ) 

COMMISSIONER OF ) 

SOCIAL SECURITY, ) 

 ) 

Defendant. ) 

O R D E R 

AND NOW, this 10th day of December, 2015, upon consideration of Plaintiff’s Motion 

for Attorney Fees pursuant to the Social Security Act, 42 U.S.C. § 406(b), and the Equal Access 

to Justice Act, 28 U.S.C. § 2412(d) (Doc. No. 15), filed by Plaintiff’s Counsel (“Counsel”) in the 

above-captioned matter on February 2, 2015, and upon further consideration of Defendant’s 

response thereto (Doc. No. 16), filed on March 4, 2015, and upon further consideration of 

Plaintiff’s Brief in Support of Plaintiff’s Petition for 406(b) Attorney Fees (Doc. No. 18), filed 

on October 29, 2015, and Defendant’s response thereto (Doc. No. 19), filed on November 5, 

2015, both filed in response to the Court’s Order of October 14, 2015,

IT IS HEREBY ORDERED that said Motion is DENIED as untimely. 

I. Background 

 Although this motion was purportedly filed by Plaintiff in this matter, the Court notes 

that Plaintiff’s Counsel is the true party of interest here. Counsel represented Plaintiff 

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 1 of 7
2

throughout the proceedings in this case, both at the administrative level before the Commissioner 

of Social Security (“Agency”) and at the District Court level. After remanding the case to the 

Agency for further proceedings, the District Court awarded attorney fees in the amount of 

$3,836.25, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), for 

Counsel’s work before the Court.1

 Upon remand to the Agency, an Administrative Law Judge (“ALJ”) entered a decision in 

Plaintiff’s favor, and Counsel also received payment under Section 206(a) of the Social Security 

Act, as amended, 42 U.S.C. § 406(a), for his work before the Agency. In fact, Counsel has 

advised the Court that he received payment from the Agency in the amount of $7,383.75 (minus 

an $88.00 user fee), pursuant to that statute. Unlike EAJA fees, however, fees under 42 U.S.C. 

§ 406(a) are paid “‘out of, and not in addition to, the amount of [the] past-due benefits.’” 

Gisbrecht v. Barnhart, 535 U.S. 789, 795 (2002) (quoting 42 U.S.C. § 406(b)(1)(A)). 

 After the Agency ruled in Plaintiff’s favor on remand, the Agency further determined that

Plaintiff was entitled to an award of back pay. Of this award, the Agency evidently withheld 

$17,244.75 for possible payment of attorney fees. The Agency sent a number of letters to 

Counsel advising him of his client’s award, and Counsel eventually filed the present motion for 

Section 406(b) fees with this Court. Because of the apparent delay in his filing of this fee 

petition with the Court, Counsel was provided with an opportunity to present his position as to 

 

1

 It should be noted that, although Counsel’s motion appears to seek fees pursuant to the 

Social Security Act, 42 U.S.C. § 406(b), and the Equal Access to Justice Act, 28 U.S.C. 

§ 2412(d), Counsel has already received fees under the EAJA. Additionally, Counsel properly 

states in his motion that, if awarded fees pursuant to Section 406(b), he would be obligated to 

refund his client the amount of the EAJA fees he has already been paid in connection with the 

work done at the District Court level (because the amount of the EAJA fees awarded is less than 

the amount he is currently seeking under Section 406(b)). See Gisbrecht v. Barnhart, 535 U.S. 

789, 796 (2002). 

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 2 of 7
3

the timeliness of his motion. Accordingly, Counsel filed a Brief in Support of Plaintiff’s Petition 

for 406(b) Attorney Fees (“Response”). It is this issue of the timeliness of Counsel’s fee petition 

that is presently before the Court. 

II. Discussion 

The Court of Appeals for the Third Circuit has held that the time frame for filing a 

petition for fees pursuant to 42 U.S.C. § 406(b) is governed by Federal Rule of Civil Procedure 

54(d)(2). See Walker v. Astrue, 593 F.3d 274, 280 (3d Cir. 2010). This Rule provides that a 

motion for attorney fees must be filed no later than 14 days after the entry of judgment, unless 

otherwise provided by court order or statute. See id. at 277. The Third Circuit has held, further,

that application of the filing deadline is tolled until notice of the award of benefits is issued by 

the Agency and counsel is notified of the award. See id. at 280. Thus, counsel has 14 days from 

notification of the notice of award to file a fee petition in a district court. See id. 

In the case at bar, Counsel attached to his motion for attorney fees a letter, dated January 

21, 2013, from the Agency notifying him of a determination of the amount of Supplemental 

Security Income back payments (totaling $58,701.20) owed to his client. (Doc. No. 15-4). 

Counsel did not file his petition for fees with the Court at that time, however, but instead did so 

approximately two years later. Counsel contends that this letter did not provide him with the 

requisite notice triggering the 14-day filing window because it did not provide a total back pay 

award (in that the Agency had not yet determined Plaintiff’s entitlement to Disability Insurance 

Benefits), and because the letter does not make reference to Section 406(b) fees. 

Nevertheless, Counsel attached to his Response a copy of Plaintiff’s Disability Insurance 

Benefits Notice of Award (“Notice”), dated September 30, 2013, which was also evidently sent 

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 3 of 7
4

to Counsel and to his client by the Agency. (Doc. No. 18-2). That Notice explained that the 

Agency “usually withhold[s] 25 percent of past due benefits in order to pay the approved 

lawyer’s fee.” Id. The Notice further specified that the Agency was withholding $17,244.75 

from Plaintiff’s past due benefits “in case we need to pay your lawyer,” and that “[i]f all the 

work on this case for you and your family is finished, and your lawyer wants to charge a fee, a 

request to have it approved should be sent to us right away.” Id. The Notice then states, in part, 

that such petition should be sent to the ALJ at the listed address. See id. at 2-3. Counsel 

explains that he “subsequently filed a Fee Petition with the Social Security Administration based 

on the total back benefit calculated at $17,244.75, on October 7, 2013.” (Doc. No. 18, at 2). The 

Court notes that such procedure may have been appropriate for Counsel seeking fees, pursuant to 

Section 406(a), for services performed before the Agency. 

However, in order to seek fees from the District Court for work performed before the 

Court pursuant to Section 406(b), Counsel was required to file a petition with the Court. 

Significantly, the Notice itself explains the procedure to be followed in seeking fees for services 

performed at the district court level. Oddly, Counsel claims that the Notice is “void of reference 

to 406(b) fees,” and that “[a]ll documents instructed Plaintiff’s attorney to seek attorney fees 

through the ALJ or Office of Central Operations.” Id. Upon review, however, the Court notes 

that the Notice provides that, “Section 206(B) of the Social Security Act, as amended, 

governs fees for services before the court.”

2

 (Doc. No. 18-2, at 3). The Agency’s Notice then 

 

2

 The Court notes that “Section 206 of the Social Security Act (‘the Act’), 42 U.S.C. 

§ 406, governs the representation of Social Security claimants and dictates how fees for 

representation will be assessed and paid.” In re Handel, 570 F.3d 140, 144 (3d Cir. 2009). 

Further, Section 206(b) of the Social Security Act, as amended, can be found in the United States 

Code at 42 U.S.C. § 406(b).

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 4 of 7
5

elaborates and further specifies that, if Plaintiff’s counsel “wishes to receive a fee for those 

services, he must send the petition for that fee to the United States District Court you appeared 

before with a copy to the Unites States Attorney’s Office.” Id. 

Thus, while giving Counsel the benefit of the doubt as to whether the first letter from the 

Agency constituted sufficient notice of his client’s back pay award to trigger the 14-day filing 

period, the Court finds that Counsel clearly was notified of Plaintiff’s notice of award once he 

had also received the September 30, 2013, Notice from the Agency. As discussed, supra, 

Counsel had 14 days from such notification in which to file a fee petition in the District Court, 

yet he did not file the present petition until February 2, 2015, well over a year (16 months) later. 

Accordingly, Counsel’s motion is untimely under 42 U.S.C. § 406(b). 

Moreover, the Court finds that there are no grounds for equitable tolling of the time 

period for filing Counsel’s motion for fees. Regardless of his claim to the contrary, the Agency 

stated in its Notice that Counsel needed to file a petition with the Court in order to seek fees 

under the statute for work performed there, but Counsel failed to do so within the relevant 14-

day time frame. Nevertheless, Counsel apparently also received a follow-up letter from the 

Agency, dated September 10, 2014, which Counsel attached to his Response, explaining that the 

Agency was “writing at this time to determine whether you have petitioned the United States 

District Court for the Western District of Pennsylvania for a fee for your services before the 

court.” (Doc. No. 18-5). The Agency then requested that Counsel write to let it know whether 

he had or would petition for a fee and, if he had been authorized to receive such a fee in this 

case, to please send the Agency a copy of that authorization. See id. With regard to this letter, 

Counsel simply claims that it “did not reference 406(b) fees,” but that it contained “a vague 

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 5 of 7
6

statement about petitioning the United States District Court for a fee for services before the 

court.” (Doc. No. 18, at 3). Regardless, after receiving this letter, Counsel still failed to file a 

fee petition with the Court. 

It was not until Counsel received a final notice, dated January 14, 2015, stating that the 

Agency did not wish to delay the release of funds withheld from Plaintiff’s past-due benefits, and 

that it was going to certify the withheld funds for payment to Plaintiff—unless Counsel filed a 

petition for approval of a fee or a written request for an extension of time—that Counsel finally 

filed the fee petition at issue here. (Doc. No. 18-6). By this time, however, the filing of the fee 

petition with the Court was clearly untimely. 

The Court notes, additionally, that Section 406(b) authorizes it to approve Counsel’s fee 

request from Plaintiff’s award only for work performed in court. Counsel’s compensation for 

services performed during the administrative phase of this case was determined separately by the 

Agency. See Guido v. Schweiker, 775 F.2d 107 (3d Cir. 1985). As noted, supra, Counsel 

petitioned for, and received payment from the Agency, in the amount of $7,383.75 (minus an 

$88.00 user fee) pursuant to Section 406(a) for his work before the Agency. Furthermore, in 

response to Counsel’s earlier petition for EAJA fees, the Court also already awarded Counsel 

$3,836.25 for his work before the Court. In fact, the Court ordered such fees be paid to Counsel 

for work that is essentially the same as that for which he is seeking fees in the instant petition 

under Section 406(b). 

While fees awarded under the EAJA are calculated differently than fees awarded under 

Section 406(b), see Gisbrecht v. Barnhart, 535 U.S. 789 (2002), and Counsel was free to file a 

petition—in a timely manner—arguing that he was entitled to fees for this work beyond the fees 

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 6 of 7
7

already awarded pursuant to the EAJA, the fact remains that Counsel has indeed received 

compensation for his time spent in court. Perhaps, if his motion had been filed at the appropriate 

time in accordance with the law, Counsel might have “received greater fees pursuant to Section 

406(b), but he is not being left with no fee whatsoever for his court work performed.” Walker v. 

Massanari, 746 F. Supp. 2d 657, 661 (W.D. Pa. 2010). Thus, “[i]t simply cannot be said that it is 

extraordinary or manifestly unjust for counsel to be denied fees under Section 406(b) when he 

has already been compensated for that work, albeit at a lesser rate.” Id. at 662. 

III. Conclusion 

Accordingly, for the reasons set forth herein, the Court finds Counsel’s petition for fees 

to be untimely, and, thus, the motion is denied. 

 s/Alan N. Bloch 

 United States District Judge 

ecf: Counsel of record 

Case 1:09-cv-00194-ANB Document 20 Filed 12/10/15 Page 7 of 7