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).