December 9, 2015
Amended March 30, 2016.
L. Herzberg, Zinker & Herzberg LLP, Smithtown, NY, for
Lipari (Varuni Nelson and Arthur Swerdloff, on the brief),
Assistant United States Attorneys, for Robert L. Capers,
United States Attorney for the Eastern District of New York,
New York, NY, for Defendant-Appellee.
CALABRESI, POOLER, and LYNCH, Circuit Judges.
Social Security Act provides for successful representatives
to be compensated for their services through deductions from
payments that their clients are entitled to receive. The
instant cases both concern the Social Security
Administration's alleged failure to disburse
attorney's fees pursuant to this fee provision, 42 U.S.C.
Binder & Binder (" Binder" ), a law firm that
represents claimants before the Social Security
Administration (" SSA" ), appeals from summary
judgment in two related cases. In both cases, Binder seeks
past attorney's fees pertaining to its successful
representation of claimants who later declared bankruptcy and
had their debts, including those to Binder, discharged by the
bankruptcy courts. When Binder sought to hold the SSA liable
for the fees, the district courts below granted summary
judgment to the SSA on the basis of sovereign immunity.
Binder & Binder, P.C. v. Colvin, 55 F.Supp.3d 439,
446 (E.D.N.Y. 2014); Binder & Binder, P.C. v.
Colvin, No. 13 CV 432 DRH, 2014 WL 6632713, at *6
(E.D.N.Y. Nov. 21, 2014). Both courts followed two circuit
courts of appeals that have explicitly held that 42 U.S.C.
§ 406(a) does not constitute a waiver of the SSA's
sovereign immunity, which, if not waived, precludes such
lawsuits. In re Handel, 570 F.3d 140, 145, 311
Fed.Appx. 541 (3d Cir. 2009); Pittman v. Sullivan,
911 F.2d 42, 46 (8th Cir. 1990). The decisions below conflict
with an earlier decision, also from the Eastern District of
New York, which found, instead, that 42 U.S.C. § 406(a)
of the Social Security Act does waive sovereign
immunity. Binder & Binder, P.C. v. Astrue, 848
F.Supp.2d 230, 240-45 (E.D.N.Y. 2012). Our court has not
previously addressed this issue.
affirm the conclusion of the two district courts in the
instant cases and hold that, regardless of the SSA's
statutory duties to withhold attorney's fees from
payments to successful claimants, there is no waiver of
sovereign immunity in 42 U.S.C. § 406(a) that would
permit Binder's lawsuits for money damages.
improve access to civil counsel, the Social Security Act
grants, and regulates, attorney's fees to representatives
of successful claimants. The relevant fee provision, 42
U.S.C. § 406, parallels other statutory schemes
regulating the fees of lawyers. See Judith Resnik,
Money Matters: Judicial Market Interventions Creating
Subsidies and Awarding Fees and Costs in Individual and
Aggregate Litigation, 148 U. Pa. L. Rev. 2119, 2143
instant appeals arise from two cases involving the SSA's
alleged failure to disburse statutorily approved
attorney's fees to Binder. In both cases, Binder
successfully represented claimants before the SSA who were
found to be eligible for past-due benefits. It was,
therefore, entitled to receive compensation pursuant to 42
U.S.C. § 406(a), which states:
[W]henever the Commissioner of Social Security . . . makes a
determination favorable to the claimant, the Commissioner
shall, if the claimant was represented by an attorney in
connection with such claim, fix . . . a reasonable fee to
compensate such attorney ...