FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 08 2008

THOMAS K. KAHN

CLERK

Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of *

Florida, sitting by designation.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11298

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D. C. Docket No. 02-02937-CV-CAM-1

CYNTHIA R. BLITCH, 

Plaintiff-Appellant, 

versus 

MICHAEL J. ASTRUE, 

Commissioner, Social Security Administration, 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 8, 2008)

Before ANDERSON and BLACK, Circuit Judges, and HODGES, District Judge. *

PER CURIAM:
 We are very sympathetic with the attorney’s plight under the unique circumstances

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created by a remand judgment under sentence four of 42 U.S.C. § 405(g). Our understanding is

the amount of fees owed under a contingency arrangement is not established for months after

remand, until the Social Security Administration determines the amount of the client’s award. In

Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best practice

for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural

framework of a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the district court

to include in the remand judgment a statement that attorneys fees may be applied for within a

specified time after the determination of the plaintiff’s past due benefits by the Commission. 

454 F.3d at 1278 n.2. As we understand it, however, the best practice has not been a universallyworkable solution. Perhaps another vehicle for creating some much needed certainty in this area

of the law is for the district courts to fashion a general order or a local rule permitting districtwide application of a universal process for seeking fees under these unique circumstance. It is

our hope the district courts, in doing so, will keep in mind Congress’s intent behind § 406(b), to

encourage attorneys to represent Social Security claimants. See Bergen, 454 F.3d at 1276. 

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Cynthia R. Blitch’s attorney appeals the district court’s denial of his petition

for attorney’s fees after his client, Blitch, was awarded past-due Social Security

disability benefits. The fee petition was brought pursuant to 42 U.S.C. § 406(b)(1)

of the Social Security Act and dismissed by the district court as time barred by

Federal Rule of Civil Procedure 54(d)(2)(B). On appeal, Appellant argues the

district court should not have dismissed the petition for attorney’s fees as untimely

because the Commissioner did not object to the timeliness of the petition. In

addition, he argues his actions were reasonable under the circumstances. 

After reviewing the briefs and record, and with the benefit of oral argument,

we conclude, under the confusing circumstances of this case, the district court

abused its discretion, see ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999),

because the attorney’s actions were reasonable. Therefore, we vacate and remand 1
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with instructions for the district court to determine the fees owed to the attorney

under § 406(b) of the Social Security Act. 

VACATED AND REMANDED