            Case: 13-14321   Date Filed: 07/21/2014    Page: 1 of 6




                                                                         [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 13-14321
                         ________________________

                    D.C. Docket No. 3:09-cv-00607-JBT



WILLIAM L. KELLER,

                                                Plaintiff - Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

                                                Defendant - Appellee.

                         ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 21, 2014)

Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.

WILSON, Circuit Judge:
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       Following a successful claim for Social Security disability benefits,

Appellant William Keller filed a motion asking the court to approve the

contingency fee arrangement he agreed to with his lawyer. The magistrate judge

who handled the motion determined that a fee in the amount of $11,876.65 was

reasonable pursuant to 42 U.S.C. § 406(b)(1), and Keller appealed. For the reasons

stated below, we affirm.

       In 1998, Keller applied for disability insurance benefits, claiming his

disability began on September 18, 1997. On July 17, 2001, he received a partially

favorable decision from an administrative law judge (ALJ) entitling him to benefits

for the period of September 18, 1997 through October 1, 1999.1 Keller appealed

the decision and spent nearly ten years exhausting his administrative remedies and

pursuing his claims in the district court. During this process, Keller elected to

receive early retirement benefits. Ultimately, in July 2011, the Commissioner

determined that Keller had remained disabled throughout the course of his appeal

and issued a Notice of Award informing Keller that he was entitled to $83,374.00

in past-due benefits for the period of October 1999 through June 2011.

       Following this favorable outcome, Keller filed a motion seeking an award of

attorney’s fees in the amount of $19,498.90, pursuant to 42 U.S.C. § 406(b)(1)(A),



       1
         Keller received benefits in the amount of $17,451.91 for this period. Keller’s lawyer
received a fee of $3,279.50 (18.79%) pursuant to 42 U.S.C. § 406(a).
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based on his own calculation for the amount of past-due benefits—$113,863.00. 2

The Commissioner opposed the motion, arguing that the correct amount of past-

due benefits was $83,374.00.3 The magistrate judge excluded the early retirement

benefits Keller received when calculating the amount of past-due benefits owed

under the agreement and determined that a fee award of $11,876.65 was

reasonable.

         Keller argues that the district court erred when it determined that a fee of

$11,876.65—which was calculated using a past-due benefit amount that had been

reduced to reflect the amount of early retirement benefits Keller received—was

reasonable. In support of this argument, Keller cites § 406(b), which he reads to

preclude such a reduction. But we need not reach Keller’s statutory argument

because the language found within the fee agreement controls the outcome of this

case.4

         In Gisbrecht v. Barnhart, the Supreme Court considered 42 U.S.C. § 406(b)

and clarified its impact on the district court’s role in awarding a reasonable fee

         2
          The contingent fee agreement Keller entered into with his lawyer called for a fee
equaling 25 percent of any past-due benefits owed to Keller. The fee Keller actually requested
before the magistrate judge was less than 25 percent of $113,863.00 because Keller’s lawyer had
previously been awarded fees under the Equal Access to Justice Act and § 406(a), and
§ 406(b)(1)(A) caps the total fee at 25 percent of past-due benefits.
        3
          The discrepancy between the competing calculations of past-due benefits results from
Keller’s inclusion of early retirement benefits he received from the Social Security
Administration.
        4
          “[I]nterpretation of an attorney-client fee contract is a question of law subject to de
novo review on appeal.” Sweeney v. Athens Reg’l Med. Ctr., 917 F.2d 1560, 1564 (11th Cir.
1990).
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following a favorable claim for Social Security benefits. See 535 U.S. 789, 807,

122 S. Ct. 1817, 1828 (2002). Although § 406(b)(1)(A) gives district courts the

power to “determine and allow as part of its judgment a reasonable fee” following

a favorable claim for Social Security benefits, 42 U.S.C. § 406(b)(1)(A), it does

not empower them to ignore the fee agreements entered into by parties when

determining what a reasonable fee would be, see Gisbrecht, 535 U.S. at 807, 122

S. Ct. at 1828 (concluding that “§ 406(b) does not displace contingent-fee

agreements as the primary means by which fees are set”). Instead, courts must

look to the agreement made by the parties and independently review whether the

resulting fee is reasonable under the circumstances. Id. Accordingly, we must

look to the fee agreement made by Keller and his attorney.

      The fee agreement states, in relevant part, that “[t]he Attorney’s fee will be

determined by the amount owed to the Client . . . for past due Social Security

benefits.” (Emphasis added.) It also mandates that the fee “shall never exceed

25% of the ‘past due’ benefits owed [to the] Client.”

      The parties dispute whether, under the agreement, the amount of past-due

benefits owed includes the early retirement benefits Keller received. The

Commissioner conceded at oral argument that, as a result of Keller’s favorable

decision, the early retirement benefits he received are better characterized as

disability benefits. However, the Commissioner contends that those benefits were


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not “owed” to Keller, as required under the contract, because they had already been

paid. Keller counters by arguing that the amount “owed” is more properly viewed

as the total amount that he was ultimately entitled to receive for the relevant period

of disability. Receiving early retirement benefits did not reduce the amount he was

“owed;” it merely reduced the amount the government needed to pay to satisfy its

obligations.

      The magistrate judge noted, and we agree, that the language found in the

contingent-fee arrangement is ambiguous. In these circumstances, we regularly

construe contracts against the drafting party. See Carneiro Da Cuhna v. Standard

Fire Ins. Co., 129 F.3d 581, 585 (11th Cir. 1997). Accordingly, we interpret the

agreement between Keller and his attorney—which calls for a fee in the amount of

25 percent of past-due benefits owed—as providing for a fee of 25 percent of past-

due benefits that had not already been paid to Keller.

      Keller claims that the magistrate judge should not have avoided the statutory

arguments presented. But avoiding those arguments was entirely appropriate in

these circumstances. The magistrate judge correctly noted that § 406(b)(1)(A)

prohibits fee agreements from providing for a fee “in excess of 25 percent of the

total of the past-due benefits to which the claimant is entitled.” 42 U.S.C.

§ 406(b)(1)(A). He then clarified that the language of the fee agreement did not

track the language of § 406(b)(1)(A). Implicit in that clarification, of course, is a


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recognition that the agreement, not the statute, provides the “primary means by

which fees are set.” Gisbrecht, 535 U.S. at 807, 122 S. Ct. at 1828.

       Thus, the magistrate judge did exactly what was required of him under

§ 406(b)(1)(A) and Gisbrecht. He started with the fee agreement, and after

determining that the early retirement benefits were not past-due benefits “owed,”

went on to conduct an independent review of the resulting fee for reasonableness.

Because we agree with the magistrate judge’s interpretation of the contract and

find no error in his review of the fee, we affirm the fee award of $11,876.65. 5

       AFFIRMED.




       5
         We acknowledge that this result may seem inequitable, particularly to Keller’s attorney,
who likely would have collected the fee sought here if not for the Commissioner’s erroneous
denial of disability benefits and Keller’s subsequent decision to receive early retirement benefits.
But such a result is best avoided by drafting contracts with more precision. At oral argument,
Keller’s attorney stated that he had already modified his contracts to avoid this problem going
forward. Other attorneys would be well-advised to do the same.
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