United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge
James D. alleges that the attorney who successfully
represented him in a supplemental security income proceeding
was awarded an excessive attorney fee award. Pl.'s Compl.
3, ECF No. 1. Defendant, the Commissioner of Social
Security, moves to dismiss the claim pursuant to Fed.R.Civ.P.
12(b)(6), alleging that this Court lacks jurisdiction to
review a fee award under the Social Security Act, 42 U.S.C.
§ 406(a). Def.'s Mot. 1-2, ECF No. 16. Because this
Court lacks jurisdiction to review Plaintiff's claim,
Defendant's Motion to Dismiss, ECF No. 16, is GRANTED,
and Plaintiff's Complaint, ECF No. 1, is dismissed with
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000). However, the court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. If the
complaint is dismissed, leave to amend should be granted
unless “the pleading could not possibly be cured by the
allegation of other facts.” Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995).
U.S.C. § 406(a)(2)(A) provides that where a claimant is
successful in a past-due benefits claim, the Commissioner
will approve a fee agreement between the claimant and another
person if it is presented in writing and does not exceed a
certain amount 25 percent of the total amount of past-due
benefits or $4, 000.00. The Commissioner shall provide for
review of the fee amount upon the request of the claimant,
administrative law judge (“ALJ”) or other
deciding adjudicator, or representative. § 406(a)(3)(A).
Upon completion of review of a § 406(a) fee, the ALJ or
other reviewer shall affirm or modify the maximum fee amount,
and that decision “shall not be subject to further
review.” 42 U.S.C. § 406(a)(3)(c). Likewise, 20
C.F.R. § 404.1720(d) states that the Social Security
Administration will review a fee decision if a claimant or
his representative timely files a written request for review,
but that determination “is not subject to further
review. Id. 42 U.S.C. § 405(g) gives federal
courts jurisdiction to review “any final decision of
the Commissioner of Social Security made after a hearing to
which he was a party . . .” It does not give this Court
jurisdiction to review the amount of a § 406(a) fee.
concedes that the Commissioner's “final
decision” regarding the affirmation of a fee agreement
is unreviewable but argues that the law is unconstitutional
and violates his due process rights. Pl.'s Resp. 2 and 4,
ECF No. 21. Plaintiff also argues that the Social Security
Administration denied him due process by internally reviewing
his attorney fee appeal and failing to consider the relevant
factors. Pl.'s Resp. 2-3. The ALJ reviewed the record and
Plaintiff's attorney's response and affirmed the fee
agreement without explanation. Id. at 3. Plaintiff
did not receive a copy of his attorney's response, an
invoice of his work on the case, or notice of the amount he
requested ($5, 579.00). Id. Plaintiff did not raise
these claims in his Complaint and would be unable to
sufficiently do so if given leave to amend. See
Pl.'s Compl. 3.
Process Clause of the Fifth Amendment to the United States
Constitution, applicable to the states through the Fourteenth
Amendment, provides that no person may be deprived of life,
liberty, or property without due process of law. “The
fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (internal citations and quotations omitted). Due
process rights are flexible, depending largely on the
specific factual circumstances along with a weighing of the
governmental and private interests involved. Id. at
334 (internal citations omitted); Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)
(due process tolerates variances in procedure
“appropriate to the nature of the case.”). Each
setting invites its own assessment under Matthews.
Generally, persons holding interests protected by the due
process clause are entitled to “some kind of
hearing.” Wolff v. McDonnell, 418 U.S. 539,
557-58 (1974) (citations omitted). Such a hearing does not
include the full range of rights and protections available to
litigants in judicial proceedings. Henry J. Friendly,
Some Kind of Hearing, 123 U. PA. L. Rev.
1267, 1277-78 (1975). Courts look at three factors when
considering the sufficiency of the administrative procedures
First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
Mathews, 424 U.S at 335.
the ALJ approved Plaintiff and his attorney's fee
agreement on the same date that he determined Plaintiff had
been disabled. Def.'s Mot. 2 (citing Pl.'s Compl.
15). Plaintiff objected to the amount and an ALJ reviewed the
decision approving the fee agreement, concluding that it was
appropriate. Def.'s Mot. 2 (citing Pl.'s Compl. 3 and
14). Plaintiff's private interest will be affected by the
approval of the fee award. There is, however, little risk of
an erroneous deprivation of Plaintiff's interest where
Plaintiff himself entered into the fee agreement and two ALJs
reviewed it on two separate occasions per the applicable
statutory and regulatory provisions. Even if additional or
substitute procedural safeguards were employed, the fee award
was within the limit prescribed by § 406(a)(2)(A)(ii).
See Pl.'s Resp. 4 (conceding that
Plaintiff's attorney initially charged him 98.3% of the
maximum allowable fee, though he sent an additional bill for
a total exceeding the maximum). Finally, the Commissioner has
an interest in efficient review of fee agreement approvals.
The Court is not inclined to require the Commissioner to
provide a written opinion or administrative hearing with
procedural safeguards such as cross examination, live
testimony, a public record, and findings of fact prepared by
a tribunal. Doing so would impose a significant burden on the
Social Security Administration. Additionally, Plaintiff does
not have a constitutional right to judicial review of the
approval and subsequent affirmation of his fee agreement with
Plaintiff cannot properly allege facts sufficient to state a
due process claim, amendment of the Complaint would be
futile. Plaintiff's ...