Power, David F. v. Massanari, Larry G.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 12, 2002 Decided June 11, 2002

No. 01-5182

David F. Power,

Appellant

v.

Jo Ann Barnhart, Commissioner,

Social Security Administration,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 00cv00398)

David F. Power, appearing pro se, argued the cause and

filed the briefs for appellant.

Fred E. Haynes, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: Tatel and Garland, Circuit Judges, and Williams,

Senior Circuit Judge.

Garland, Circuit Judge: Attorney David Power seeks a

writ of mandamus compelling the Social Security Administra-

tion (SSA) to approve a fee agreement he submitted to

recover fees for representing a claimant before the SSA. The

district court dismissed Power's complaint, finding that he

had failed to satisfy the strict requirements for mandamus.

Because neither Power's right to relief nor the SSA's duty to

provide it is clear, and because Power failed to avail himself

of an adequate alternative remedy, we affirm the district

court's determination that a grant of the extraordinary reme-

dy of mandamus is inappropriate in this case.

I

Under the Social Security Act, 42 U.S.C. s 406(a), an

attorney who represents a person with a claim for Social

Security benefits before the SSA has a right to a reasonable

fee, fixed in accordance with regulations prescribed by the

Commissioner of Social Security. Id. s 406(a)(1). In 1980,

the SSA issued regulations establishing a "fee petition" pro-

cess for the purpose of determining a reasonable fee. See 20

C.F.R. ss 404.1720-.1725, .1730. Those regulations require

the attorney to submit a petition listing such information as

the services rendered, the amount of time expended, and the

fee desired. Id. s 404.1725(a). The SSA then evaluates the

petition based on such factors as the complexity of the case,

the level of skill required of the attorney, and the results

achieved for the claimant. Id. s 404.1725(b)(1).1

In 1990, Congress amended s 406(a), adding a new subsec-

tion, s 406(a)(2). See Omnibus Budget Reconciliation Act of

1990, Pub. L. No. 101-508, s 5106(a), 104 Stat. 1388, 1388-

266. That subsection authorizes an attorney who assists a

__________

1 Pursuant to a petition, the Commissioner may authorize a fee

even if the claimant was unsuccessful in obtaining benefits. 20

C.F.R. s 404.1725(b)(2).

claimant with an administrative claim to receive compensation

pursuant to a "fee agreement" entered into with the claimant.

Such an agreement must satisfy three prerequisites: (i) it

must be submitted to the Commissioner in writing prior to

the time the Commissioner makes a determination on the

claim; (ii) it must specify a fee that does not exceed the lesser

of 25% of the past-due benefits awarded or $4,000;2 and (iii)

the Commissioner must make a determination favorable to

the claimant. 42 U.S.C. s 406(a)(2)(A). If these require-

ments are satisfied, "then the Commissioner of Social Securi-

ty shall approve that agreement at the time of the favorable

determination, and ... the fee specified in the agreement

shall be the maximum fee." Id. As with fee petitions, when

a fee agreement is approved, the SSA certifies the fee for

payment out of the past-due benefits owed to the claimant.

See id. s 406(a)(4); 20 C.F.R. s 404.1730(b).

This case originated in a claim for disability benefits filed

by Jerome Fleeton in 1997. At that time, Fleeton lived in

Ohio and was represented before the agency there by John A.

McNally, III. Fleeton signed an "Appointment of Represen-

tative" form and a fee agreement naming McNally as his

attorney. See Joint Appendix (J.A.) at 19-20. Fleeton's

initial application for disability benefits was denied, and he

requested a hearing before an Administrative Law Judge

(ALJ). Before the hearing took place, however, Fleeton

moved to Maryland and had the hearing transferred to the

Washington, D.C. hearing office.

Fleeton engaged Power, the plaintiff here, to represent him

before the ALJ in Washington. Fleeton signed a second

Appointment of Representative form and another attorney

fee agreement, this time with Power. See J.A. at 21, 27. The

ALJ awarded Fleeton past-due benefits on October 24, 1998,

__________

2 This amount was increased to $5,300 effective February 2002.

See 42 U.S.C. 406(a)(2)(A) (allowing the Commissioner of Social

Security to increase the maximum fee agreement award); Maxi-

mum Dollar Limit in the Fee Agreement Process, 67 Fed. Reg.

2477 (Jan. 17, 2002).

and issued an order "approv[ing] the fee agreement between

the claimant and his representative." J.A. at 24.

The SSA soon realized that two attorneys had represented

Fleeton over the course of his claim. On July 6, 1999, the

Deputy Chief ALJ of the SSA's Office of Hearings and

Appeals issued an order disapproving Power's fee agreement.

In a letter to Power, the Deputy Chief ALJ explained that

"[s]ince the claimant appointed more than one representative,

and all did not sign a single, common fee agreement or waive

charging and collecting a fee, the Social Security Administra-

tion cannot process your fee under the fee agreement pro-

cess." J.A. at 25. In order to collect a fee, the letter advised,

Power would have to "file a fee petition." Id.

Power did not file a fee petition, nor did he seek a fee

waiver from McNally. Instead, he filed suit in the United

States District Court for the District of Columbia under 28

U.S.C. s 1361, seeking a writ of mandamus ordering the SSA

to approve his fee agreement.3 The district court dismissed

Power's complaint, holding that s 406(a) does not grant an

attorney a clear right, nor impose upon the SSA a clear duty,

with respect to approval of a fee agreement when two or

more attorneys have submitted agreements regarding the

same claim. The court also held that, given the availability of

the fee petition process, Power had failed to show that

mandamus was the only adequate remedy available. We

review the district court's dismissal of the complaint de novo,

accepting the complaint's allegations as true for purposes of

this appeal. See Gray v. Poole, 243 F.3d 572, 575 (D.C. Cir.

2001).

II

The "remedy of mandamus is a drastic one, to be invoked

only in extraordinary circumstances." Allied Chemical Corp.

v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Mandamus is avail-

able only if: "(1) the plaintiff has a clear right to relief; (2)

__________

3 Section 1361 provides: "The district courts shall have original

jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff."

the defendant has a clear duty to act; and (3) there is no

other adequate remedy available to plaintiff." Northern

States Power Co. v. U.S. Dep't of Energy, 128 F.3d 754, 758

(D.C. Cir. 1997) (quoting Council of and for the Blind of

Delaware Cty. Valley, Inc. v. Regan, 709 F.2d 1521, 1533

(D.C. Cir. 1983) (en banc)). The party seeking mandamus

"has the burden of showing that 'its right to issuance of the

writ is clear and indisputable.' " Northern States Power, 128

F.3d at 758 (quoting Gulfstream Aerospace Corp. v. Mayaca-

mas Corp., 485 U.S. 271, 289 (1988)). The plaintiff has failed

to satisfy that burden here.

A

Power bases his claim that he has satisfied the first two

requirements of mandamus--that plaintiff's right to relief and

defendant's duty to act be clear--on the language of 42

U.S.C. s 406(a)(2)(A). That provision declares that the Com-

missioner of Social Security "shall approve" a fee agreement

if the agreement meets the three prerequisites of the subsec-

tion described above. As the SSA points out, however,

s 406(a)(2) is silent as to what the Commissioner should do if

she is presented with more than one fee agreement. Indeed,

the three statutory prerequisites, as well as the "shall ap-

prove" clause, are all written in the singular--indicating that

Congress did not contemplate a scenario in which multiple

attorneys presented agreements.4 Moreover, as the SSA

further argues, if there were a mandatory duty to approve

__________

4 Section 406 (a)(2)(A) provides:

In the case of a claim of entitlement to past-due benefits under

this subchapter, if--

(i) an agreement between the claimant and another person

regarding any fee to be recovered by such person to compen-

sate such person for services with respect to the claim is

presented in writing to the Commissioner of Social Security

prior to the time of the Commissioner's determination regard-

ing the claim,

(ii) the fee specified in the agreement does not exceed the

lesser of--

any agreement that met the three prerequisites, and if two

agreements in a single case did so, then approval of both

could conflict with an important purpose of s 406(a)(2)(A)(ii):

to cap the amount that a claimant may agree to pay in

attorneys' fees at the lesser of 25% of his recovery or $4,000.

Accordingly, the SSA concludes--as set forth in its July 6

letter--that where there are agreements with more than one

attorney, the attorneys must file fee petitions so that the

agency can review the requested fees for their overall reason-

ableness.

Power concedes that the statute is silent on the question of

how the SSA should handle multiple fee agreements. He

argues, however, that the SSA need not resort to the fee

petition process of s 406(a)(1) to handle the problem of

multiple fees that in combination may exceed the statutory

maximum. As Power points out, an alternative solution is

offered by s 406(a)(3)(A), which empowers the Commissioner

to reduce a fee agreement if the agreed-upon fee is "clearly

excessive for services rendered." Nonetheless, the fact that

there are alternative solutions to the problem posed by

multiple fee agreements does not impose a clear duty on the

SSA to choose the alternative preferred by the plaintiff.

Power also contends that the SSA's position in this case is

inconsistent with its prior interpretation of s 406(a)(2). Fol-

lowing the trail of agency pronouncements on this subject

poses only slightly less difficulty than following the trail of

bread crumbs left by Hansel and Gretel. Power rests his

claim on an attachment to a 1992 internal memorandum

__________

(I) 25 percent of the total amount of such past-due bene-

fits ..., or

(II) $4,000, and

(iii) the determination is favorable to the claimant,

then the Commissioner of Social Security shall approve that

agreement at the time of the favorable determination, and

(subject to paragraph (3)) the fee specified in the agreement

shall be the maximum fee.

42 U.S.C. s 406(a)(2)(A) (emphasis added).

written by Daniel L. Skoler, who at the time was the Associ-

ate Commissioner of the SSA's Office of Hearings and Ap-

peals. The attachment to the memorandum states that, even

if an ALJ mistakenly approves one of multiple fee agree-

ments, the SSA should continue to process the agreement

because the agency's exception to paying under multiple

agreements is "not statutory." J.A. at 43. The SSA re-

sponds to Power's argument by advising that it has replaced

the Skoler memorandum with a new interpretation of the

statutory requirements of s 406(a)(2), an interpretation that

the agency says is reflected in its current Program Opera-

tions Manual System (POMS). See Letter from SSA to

Power (July 6, 1999) (citing POMS GN 03940.025C.4) (J.A. at

25). Under this new interpretation, the agency says, a fee

request must be made by petition where two or more attor-

neys represent a claimant. Id.; see SSA Br. at 13-14.

Power replies that the POMS does not have the authority of

the internal memo, and is in any event inconsistent with yet

another agency pronouncement, this time made in question-

and-answer format in the latest edition of the SSA's Hear-

ings, Appeals and Litigation Law Manual (HALLEX). That

pronouncement, Power contends, states that when there are

multiple fee agreements, the ALJ should honor the most

recent agreement. See Power Br. at 10 (citing HALLEX,

Temp. Instr. I-5-109). In surreply, the SSA counters that

Power has misconstrued the HALLEX, and that the cited

Q&A refers only to multiple agreements between a claimant

and the same attorney. SSA Br. at 16.

There is no reason for us to venture further into this

thicket to determine which SSA interpretation is most cur-

rent or most authoritative, or whether the agency has ade-

quately explained any changes in its views. Both Power and

the SSA agree that all three of the interpretive documents

noted above lack the administrative formality or other attrib-

utes that would justify substantial judicial deference under

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984), and hence that they would at best qualify

for the more limited form of deference accorded under Skid-

more v. Swift & Co., 323 U.S. 134 (1944). See United States

v. Mead Corp., 533 U.S. 218, 230-31 (2001); SSA Br. at 14;

Power Br. at 34. Under Skidmore, we grant an agency's

interpretation only so much deference as its persuasiveness

warrants. See Mead, 533 U.S. at 235 (citing Skidmore, 323

U.S. at 140). Thus, even were we to choose the document to

which we should pay heed, the degree of deference we would

apply would hardly be sufficient to transform s 406(a)(2)'s

silence on the subject of multiple fee agreements into the

"clear duty" required to justify a grant of mandamus. As we

have just recently reiterated, where an alleged "duty is not

... plainly prescribed, but depends on a statute or statutes

the construction or application of which is not free from

doubt, it is regarded as involving the character of judgment

or discretion which cannot be controlled by mandamus."

Consolidated Edison Co. of N.Y. v. Ashcroft, 286 F.3d 600,

605 (D.C. Cir. 2002) (quoting Wilbur v. United States, 281

U.S. 206, 218-219 (1929)).

B

Power's petition also fails to satisfy the third requirement

of mandamus: that there be no other adequate remedy

available. "[T]he alternative remedies that might call for

refusal to resort to writ of mandamus encompass judicial

remedies ... as well as administrative ones." Cartier v.

Secretary of State, 506 F.2d 191, 199 (D.C. Cir. 1974) (cita-

tions omitted); see Ganem v. Heckler, 746 F.2d 844, 852 (D.C.

Cir. 1984). In this case, the SSA advised Power that he could

obtain his fee by filing an administrative fee petition pursuant

to 20 C.F.R. s 404.1725. Power has failed to satisfy his

burden of showing that the fee petition alternative was either

unavailable or inadequate.

There is no question that the petition alternative was

available, as the SSA expressly advised Power in its July 6

letter. At various places in his briefs, Power suggests that

the petition route was unavailable, contending that, in adding

s 406(a)(2), "Congress intended the fee agreement process to

replace the fee petition process." Power Br. at 4; see Power

Reply Br. at 5-7. But nothing in the statutory language

indicates such an intention; the 1990 addition of s 406(a)(2)

simply left the fee petition provision of s 406(a)(1) undis-

turbed. In support of his argument, Power cites the Confer-

ence Report on the 1990 amendments, which he says makes

Congress' intent clear. But that report merely reflects Con-

gress' understanding that the new subsection would "general-

ly replace the fee petition process with a streamlined pro-

cess," and goes on to state that "[i]f a fee was requested for a

claim which did not meet the conditions for the streamlined

approval process, it would be reviewed under the regular fee

petition process." H.R. Conf. Rep. No. 101-964, at 933 (1990)

(emphasis added). In the SSA's view, the latter is precisely

the circumstance presented by this case. Finally, even if we

did have any lingering doubts as to whether fee petitions and

fee agreements continue to coexist as alternative means for

requesting payment, the Supreme Court's recent description

of the s 406(a)(2) fee agreement provision as "an alternative

to fee petitions" is sufficient to dispel them. Gisbrecht v.

Barnhart, No. 01-131, slip op. at 4, 535 U.S. ____, ____, 2002

WL 1049193, at *4 (May 28, 2002).

Nor has Power persuaded us that proceeding by fee peti-

tion would be an inadequate remedy. He does not contend

that he would receive less money by proceeding pursuant to

petition rather than agreement; indeed, he expressly disa-

vows such a claim. See Power Reply Br. at 16, 18. The

petition regulations themselves certainly do not suggest that

Power's award would be lower were he to take that route.

To the contrary, while awards pursuant to fee agreements are

statutorily capped at $4,000, there is no such cap on awards

granted pursuant to petition.5

__________

5 At oral argument, Power suggested that it would be difficult for

him to provide support for a fee petition because, in reliance on the

more streamlined fee agreement process, he had not kept time

records. The plaintiff did not suggest this potential inadequacy of

the fee petition process in his opening or reply briefs, and it is

simply too late to raise it for the first time in oral argument. See

Galvan v. Federal Prison Indus., Inc., 199 F.3d 461, 468 (D.C. Cir.

1999). Moreover, responding to this point at argument, counsel for

the SSA said he believed that, in the absence of original records,

the agency would accept a fair estimate of time expended because

benefits cases of this kind are fairly standardized.

Power argues that, regardless of whether he would receive

less money through petition than agreement, the avenue of

petition is inadequate because the right he seeks to vindicate

is approval of the fee agreement and not payment of the fee.

See Power Br. at 15-16; Power Reply Br. at 14-15, 18. This

argument, however, misconstrues both s 406(a) and the na-

ture of mandamus relief. If the SSA does owe any duty to

Power under s 406(a), it is a duty to pay him a fee for his

services out of the benefits that he recovered for the claimant.

See 42 U.S.C. s 406(a)(1), (2). The petition and agreement

procedures are merely alternative means to that end. See

Gisbrecht, slip op. at 4, 535 U.S. at ___. Indeed, were we to

define the means to the end as the end itself, we would simply

write the third prong out of the mandamus test. The point of

that prong is to ensure that where there are alternative

means of vindicating a statutory right, a plaintiff's preference

for one over another is insufficient to warrant a grant of the

extraordinary writ.

This principle is well illustrated in our mandamus cases.

In Council of and for the Blind, the plaintiffs sought to

compel the Office of Revenue Sharing to use administrative

means to enforce a provision of the Revenue Sharing Act, 31

U.S.C. s 1242, that prohibited state and local governments

from using revenue sharing funds in discriminatory pro-

grams. See 709 F.2d at 1524-25. This court held that

mandamus relief was not appropriate because the plaintiffs

could achieve the purpose of the statutory provision, which

ultimately was "to guarantee that the federal government

does not finance discriminatory practices by recipients of

federal funds," by suing those governments directly under the

private citizen suit provision of the Act. Id. at 1532 (citation

omitted); see id. at 1532-33.

Similarly, in Northern States Power, we again denied (in

part) a petition for mandamus on the ground that the plain-

tiffs had another adequate remedy. See 128 F.3d at 761. In

doing so, we first reiterated an earlier holding that the

Nuclear Waste Policy Act, 42 U.S.C. s 1013(a)(2), imposed an

unconditional duty on the Department of Energy to begin

accepting nuclear waste for disposal by January 31, 1998. Id.

at 758-59. Yet, notwithstanding the Department's announce-

ment that it would not accept such waste by the statutory

deadline, we declined to grant the plaintiff utilities' petition

for a writ to compel the Department to do so. Contractual

remedies under a standard contract between the parties, we

said, provided the plaintiffs with "another potentially ade-

quate remedy" in the event the Department failed to perform

on time. Id. at 759.6

As in Council of and for the Blind and Northern States

Power, there is an alternative, adequate remedy available to

vindicate Power's statutory interests in this case: the fee

petition. Accordingly, Power is unable to satisfy the third

requirement of mandamus relief.

III

Because Power has failed to demonstrate that his "right to

issuance of the writ is clear and indisputable," Gulfstream,

485 U.S. at 289 (internal quotation omitted), a grant of the

extraordinary remedy of mandamus is unwarranted. The

judgment of the district court is therefore

Affirmed.

__________

6 See also DRG Funding Corp. v. Secretary of HUD, 76 F.3d

1212, 1214 (D.C. Cir. 1996) (rejecting the plaintiffs' petition for a

writ of mandamus to enforce a judgment against the Secretary of

Housing and Urban Development, on the ground that the plaintiffs

could also obtain payment through the administrative process,

followed by a lawsuit if necessary).