                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                  September 25, 2007
                             FO R TH E TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

    BILLY J. HILL,

                Plaintiff-Appellant,

    v.                                                     No. 07-5009
                                                    (D.C. No. 02-CV-126-PJC)
    M ICH AEL J. ASTRU E,                                  (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




         In the district court, Timothy W hite, counsel for plaintiff Billy Hill, moved

for an award of attorney’s fees under section 206(b)(1) of the Social Security Act,

42 U.S.C. § 406(b)(1). M r. Hill opposed the motion, and the Commissioner of the

Social Security Administration (SSA ) argued that the sum M r. W hite requested

was unreasonable. The district court denied the motion in its entirety, and this


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appeal ensued. W e have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C.

§ 1291, and we affirm.

                                     Background

       M r. Hill applied for disability insurance and supplemental security income

benefits under the Social Security Act in M arch 1997. The Commissioner denied

the application. M r. Hill appealed to the district court, where the parties

consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c).

W hile that action was pending, M r. Hill filed a second benefits application in

June 2002.

       In connection w ith each application, M r. Hill apparently entered into two

contingent-fee agreements with his attorney, M r. W hite, a “Social Security Case

Fee A greement” and an “Attorney Fee Agreement.” Thus, in total, it appears

there were four fee agreements, but the record contains only the Social Security

Case Fee Agreement executed in 1998 and the Attorney Fee Agreement executed

in 2002. The entirety of the 1998 Social Security Case Fee Agreement provides

as follow s:

              This is a Contingent Fee Agreement. If the case is won, then
       the attorney fee shall be based on either twenty-five percent (25% ) of
       the past due benefits generated or $175.00 an hour for the time
       expended, whichever is more. Generally, there is a minimum
       attorney fee of $2500.00, if [sic] but in no event shall the attorney
       fee exceed fifty percent (50% ) of the past due benefits generated if
       less than $5000.00 in past due benefits is generated. The attorney
       fee includes any past due auxiliary benefits and/or SSI benefits that
       are generated. If an Attorney Fee Agreement, as provided by
       42 U.S.C. § 406, is filed in this case, then it will not apply if less

                                          -2-
      than $10,000 in past due benefits is generated and a hearing is held,
      or if a Request for Review is filed with the Appeals Council.

Aplt. App. at 27. The 2002 Attorney Fee Agreement provides, in relevant part:

      THIS A GREEM ENT is entered into, pursuant to 42 U.S.C. § 406,
      this 1st day of July, 2002 . . . .

            1.      This Agreement is a contingent fee agreement, so that
                    attorney fees are payable . . . only in the event that a
                    favorable administrative determination is rendered
                    on my Title II . . . disability claim and/or my Title XVI
                    Supplemental Security Income . . . claim.

            2.      M y Representative and I understand that for a fee to be
                    payable, the [SSA] must approve any fee my
                    Representative charges or collects from me for services
                    my Representative provides in proceedings before SSA
                    in connection with my claim(s) for benefits.

            3.      W e agree that if the [SSA] favorably decides my claim, I
                    will pay my Representative an attorney fee equal to the
                    lesser of either tw enty-five percent (25% ) of the
                    past-due benefits resulting from m y claim or the sum
                    of $5,300.00.

            4.      . . . W e further understand that the attorney fee for both
                    claims may not exceed the lesser of twenty-five percent
                    (25% ) of the combined past due benefits or $5300.00.

Aplt. App. at 30.

      In November 2002 the district court granted the Commissioner’s unopposed

motion to remand the first application to the agency for further proceedings. In

February 2003 the district court granted M r. W hite’s unopposed motion for

$2,721.60 in attorney’s fees under the Equal Access to Justice Act, 28 U.S.C.




                                          -3-
§ 2412 (EAJA), for services rendered in the judicial proceedings because the

Commissioner’s position was not substantially justified.

      In M arch 2003 an SSA administrative law judge (ALJ) found M r. Hill

disabled and awarded benefits based on his first application, dismissing as

duplicative his request for a hearing on his second application, which had been

denied initially and upon reconsideration. The ALJ also approved the 2002

A ttorney Fee A greement, w hich M r. W hite previously had filed with the SSA.

      On July 28, 2003, the SSA issued a Notice of Award to M r. Hill, granting

him $80,216.70 in past-due benefits, a prospective monthly payment of $987.00,

and M ediCare eligibility. The agency withheld 25% of the past-due benefits,

$20,054.18, for possible payment of attorney’s fees under 42 U.S.C. § 406, which,

subject to an offset for any EAJA award, “establish[es] the exclusive regime for

obtaining fees for successful representation of Social Security benefits

claimants,” Gisbrecht v. Barnhart, 535 U.S. 789, 795-96 (2002). Out of the

withheld amount, the agency paid M r. W hite $5,300 under § 406(a)(2)(A) 1 for

work performed at the administrative level based on the 2002 Attorney Fee

Agreement.


1
       As relevant here, § 406(a)(2)(A) provides that when past-due benefits are
awarded and a written agreement for compensation was previously presented to
the Commissioner in which the fee specified does not exceed the lesser of 25% of
the total amount of past-due benefits or $4,000 (raised to $5,300 in 2002, see
67 Fed. Reg. 2477 (2002)), the Commissioner shall approve the agreement, and
the fee specified in the agreement shall be the maximum fee for services at the
administrative level absent a request to increase it.

                                         -4-
      On June 8, 2004, more than ten months after the Commissioner issued the

Notice of Award, M r. W hite filed a motion in the district court, which he later

amended, seeking $11,045.58 in attorney’s fees under § 406(b)(1)(A) for

17.8 hours of work performed at the judicial level. 2 M r. W hite based his request

on the 1998 Social Security Case Fee Agreement, in particular its provision that

the attorney fee would be based on the greater of 25% of the past-due benefits or

$175 per hour for time spent. He calculated the amount as 25% of M r. Hill’s

past-due benefits, less deductions for the EA JA award, the § 406(a) award, and

his own delay. 3 M r. Hill objected to any further award of fees, claiming, among

other things, that M r. W hite had been ineffective in his representation and already


2
      In relevant part, § 406(b)(1)(A) provides:

             W henever a court renders a judgment favorable to a claimant
      under this subchapter who was represented before the court by an
      attorney, the court may determine and allow as part of its judgment a
      reasonable fee for such representation, not in excess of 25 percent of
      the total of the past-due benefits to which the claimant is entitled by
      reason of such judgment, and the Commissioner of Social Security
      may, notwithstanding the provisions of section 405(i) of this title, but
      subject to subsection (d) of this section, certify the amount of such
      fee for payment to such attorney out of, and not in addition to, the
      amount of such past-due benefits.
3
       W hen an attorney obtains both an EA JA award and a § 406(b) award, the
attorney is required to refund the smaller award to the client. See Gisbrecht,
535 U.S. at 796. The proper procedure is for the attorney to make the refund
from the § 406(b) award, not to request a smaller § 406(b) award. See McGraw v.
Barnhart, 450 F.3d 493, 497 n.2 (10th Cir. 2006); Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986). Thus, M r. W hite should have requested $13,767.18 in
his § 406(b) motion, as the district court later recognized. M r. W hite made the
other deductions voluntarily.

                                          -5-
had received the agreed-on fee, $5,300. The Commissioner, in a role resembling

that of a trustee for M r. H ill, see Gisbrecht, 535 U.S. at 798 n.6, opposed the

motion on a number of grounds, including that the resulting hourly rate was

excessive given the relative simplicity of the issues, the requested sum exceeded

the $5,300 amount agreed to in the 2002 Attorney Fee Agreement, and M r. Hill

was dissatisfied with the representation and objected to any further award. To the

extent the $5,300 cap did not apply, the Commissioner suggested that a

reasonable § 406(b) award would be $6,230 based on an hourly rate of $350.

      The district court denied the motion on the ground that the court lacked

statutory authority under § 406(b) to award attorney’s fees where the underlying

court judgment remanded to the agency instead of awarding benefits. On appeal,

another panel of this court reversed, see Hill v. Barnhart, 184 F. App’x 744

(10th Cir. 2006), based on the holding of our intervening opinion in M cGraw v.

Barnhart, 450 F.3d 493, 503 (10th Cir. 2006), that “§ 406(b)(1) allows a district

court to award attorneys’ fees in conjunction with a remand for further

proceedings; it is not required, as a predicate to a § 406(b)(1) fee award, that the

district court remand for an award of benefits.”

      After our remand, the district court held a hearing on the § 406(b) motion.

M r. Hill testified that the four agreements he signed were confusing and that he

thought the 2002 Attorney Fee Agreement meant he would pay M r. W hite no

more than a total of $5,300 for all work performed. He reiterated his objection to


                                          -6-
any further fee award. M r. W hite also testified, asserting that separate

agreements were necessary to recover fees for administrative and judicial work,

and that the 2002 Attorney Fee Agreement concerned only fees for administrative

work. He admitted that having two separate agreements was confusing, but

asserted that M r. H ill understood the agreements at the time he signed them. See

Aplt. App. at 147, 151; see also Aplt. Reply Br. at 7 (characterizing his own

testimony).

      In a written decision, the district court denied the motion on three separate

bases. First, the district court found a conflict between the 1998 Social Security

Case Fee Agreement and the 2002 Attorney Fee Agreement: The 1998 agreement

described the fees payable as the greater of 25% of the past-due benefits or $175

per hour, but the 2002 agreement described the fees payable as the lesser of 25%

of the past-due benefits or $5,300 and was not limited to § 406(a) fees for

services before the SSA. Applying Oklahoma law and construing the ambiguity

created by the two agreements against their drafter, M r. W hite, 4 the court

concluded that the 2002 Attorney Fee Agreement controlled— M r. Hill had

“agreed to pay an attorney fee of the lesser of 25% of his past-due benefits or


4
       The district court applied Okla. Stat. tit. 15, § 158 (“Several contracts
relating to the same matters, between the same parties, and made as parts of
substantially one transaction, are to be taken together.”); Okla. Stat. tit. 15, § 170
(as a rule of last resort, “the language of a contract should be interpreted most
strongly against the party who caused the uncertainty to exist”); and Dismuke v.
Cseh, 830 P.2d 188, 190 (Okla. 1992) (addressing when contractual am biguity is
construed against drafter).

                                          -7-
$5,300 for counsel’s services without any reference to whether those services

were before the SSA or the court.” A plt. App. at 115. Thus, because M r. W hite

already had received $5,300 from M r. Hill’s past-due benefits, he was not entitled

to any additional fee under § 406(b).

      The district court also provided two alternate bases for denying the motion.

The court reasoned that even if the 1998 Social Security Case Fee Agreement

controlled, it was per se unreasonable to the extent it permitted an award greater

than the § 406(b) cap of 25% of the past-due benefits. The court also found that

the § 406(b) motion was untimely under Fed. R. Civ. P. 60(b)(6) principles. This

appeal followed.

                                      Discussion

      W e review the denial of § 406(b) attorney’s fees for an abuse of discretion.

See McGraw, 450 F.3d at 505. A court abuses its discretion if it makes a clearly

erroneous factual finding, reaches an erroneous conclusion of law, or commits a

clear error of judgment. See Harsco Corp. v. Renner, 475 F.3d 1179, 1190

(10th Cir. 2007).

      The touchstone of an award of attorney’s fees under § 406(b) is whether the

amount requested is reasonable, and the inquiry begins with the terms of the fee

agreement. See Gisbrecht, 535 U.S. at 807 (“[Section] 406(b) calls for court

review of [contingent fee] arrangements as an independent check, to assure that

they yield reasonable results in particular cases.”). W ith respect to the first basis


                                           -8-
for the district court’s ruling, M r. W hite’s overarching contention on appeal is

that the $5,300 cap in the 2002 Attorney Fee Agreement pertained only to w ork

performed before the agency and that the 1998 Social Security Case Fee

Agreement applied to work at the judicial level. M ore specifically, he first points

to paragraph two of the 2002 Attorney Fee Agreement, which states that SSA

approval is necessary for a fee aw ard for services rendered in proceedings before

the agency. See supra. This provision, he contends, indicates that the $5,300 cap

applied only to services rendered at the administrative level and compensable

under § 406(a) because the SSA is involved only in approving fee requests for

services rendered at the administrative level, not the judicial level. Drawing this

inference, however, requires familiarity with the statutory scheme and the

respective roles of the SSA and the district court in approving fee requests, and

would require the further deduction that reference to SSA approval, in and of

itself, necessarily precluded application of the agreement’s $5,300 cap to § 406(b)

requests requiring court approval. W e believe this is too great an expectation of a

layperson. M r. W hite’s protestation that M r. Hill in fact had this understanding

when he signed the agreements is unavailing; it does not overcome the uncertainty

of the language M r. W hite drafted. If M r. W hite intended the 2002 Attorney Fee

Agreement to apply only to § 406(a) requests, he could have included language

making that clear.




                                          -9-
      M r. W hite also argues that “simultaneously” with M r. Hill’s execution of

the 2002 Attorney Fee Agreement, M r. Hill “executed a Social Security Case Fee

Agreement that specifically states that the ‘Attorney Fee Agreement, as provided

by 42 U.S.C. § 406, . . . will not apply . . . if a Request for Review is filed with

the A ppeals Council.’” Aplt. Br. at 27-28 (quoting the 1998 Social Security Case

Fee Agreement) (typeface altered; ellipses in original). M r. W hite’s apparent

conclusion is that because a Request for Review was filed, the 2002 Attorney Fee

Agreement is inapplicable. There are two problems with this argument. First, the

2002 Social Security Case Fee Agreement is not part of the record, so we cannot

be certain of its contents. Second, even assuming that M r. Hill signed such an

agreement and it contained language materially identical to that set forth in the

1998 Social Security Case Fee Agreement to which M r. W hite refers us (or even

simply construing the 1998 Social Security Fee Agreement together with the 2002

Attorney Fee Agreement), the meaning of “the Attorney Fee Agreement . . . will

not apply” is unclear. M r. W hite relied on the 2002 Attorney Fee Agreement in

obtaining § 406(a) fees for his administrative representation, so it certainly was

applicable in that context. And whether the Request for Review rendered the

$5,300 cap in that agreement inapplicable to § 406(b) fees is entirely unclear.

      W e are not persuaded by any of M r. W hite’s other arguments pertaining to

the first basis for the district court’s decision, arguments that we find nearly as

confusing in their presentation as the agreements he drafted. W e briefly address

                                          -10-
two of those. First, M r. W hite argues that the district court ignored both his

degree of success in this case, which he contends is the “most critical factor” in

determining a reasonable attorney’s fee, and one of the purposes of the statute, to

enable attorneys to be paid a reasonable fee for legal services in Social Security

cases. Aplt. Br. at 19 (quotation omitted). These contentions overlook that the

district court construed the fee agreements against M r. W hite, finding that fees

payable from M r. Hill’s past-due benefits were capped at $5,300, a sum

M r. W hite already had received, and thus the agreements precluded any further

award under § 406(b) despite the ultimate success in obtaining benefits. Second,

the fact that M r. Hill entered the fee agreements freely and voluntarily likew ise

lacks any persuasive value given their ambiguity.

                                     Conclusion

      W e conclude that the district court did not abuse its discretion in denying

the motion for § 406(b) attorney’s fees on the ground that the 1998 and 2002

agreements were ambiguous and should be construed against M r. W hite.

Accordingly, we need not reach the other bases for the district court’s decision.

The order of the district court denying the motion for § 406(b) attorney’s fees is

A FFIRME D.

                                                      Entered for the Court


                                                      Bobby R. Baldock
                                                      Circuit Judge

                                          -11-
