Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Binder & Binder, P.C. v. Colvin

United States Court of Appeals, Second Circuit

March 21, 2016

BINDER & BINDER, P.C., Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant-Appellee

         Argued December 9, 2015

         As Amended March 30, 2016.

         Jeffrey L. Herzberg, Zinker & Herzberg LLP, Smithtown, NY, for Plaintiff-Appellant.

         Vincent 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.

         Before: CALABRESI, POOLER, and LYNCH, Circuit Judges.

          OPINION

         CALABRESI, Circuit Judge.

          The 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. § 406(a).

         Plaintiff-Appellant 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).[1] Our court has not previously addressed this issue.

         We now 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.

         BACKGROUND

         Statutory Scheme

          To 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 (2000).

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.