United States District Court, M.D. Florida, Fort Myers Division
matter comes before the Court upon review of Plaintiff's
Uncontested Petition and Memorandum in Support for Reasonable
Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed on
February 13, 2018. Doc. 39. Plaintiff's counsel, Carol
Avard, requests an award of $30, 624.75 in attorney's
fees pursuant to 42 U.S.C. § 406(b), representing 25% of
the balance of Plaintiff's past-due Social Security
disability benefits. Doc. 39 at 1-2. For the reasons stated
herein, the Petition is granted.
March 2012, Plaintiff retained Ms. Avard's firm to
represent him on his yet-to-be-filed claim for Social
Security disability benefits. Id. at 3.
Plaintiff's claim was denied by the Social Security
Administration, and after a hearing in December 2013, an
Administrative Law Judge (“ALJ”) issued an
unfavorable decision in July 2014. Id. Plaintiff
filed an appeal with the Appeals Council in August 2014,
which issued an unfavorable decision in December 2015.
Id. Plaintiff then filed a Complaint in this Court
in January 2016; and on October 3, 2016, the Court granted
the Commissioner of Social Security's
(“Commissioner”) Unopposed Motion for Entry of
Judgment with Remand. Docs. 1, 26; see also Docs.
25, 39 at 3. Plaintiff had a second hearing before the ALJ on
October 2, 2017 and received a fully favorable decision on
December 12, 2017. Doc. 39 at 3-4. The ALJ awarded disability
benefits for the period of September 2012 through January
2018. Id. at 4. On January 16, 2018, the Social
Security Administration issued the Notice of Award
demonstrating that $122, 496.00 in disability benefits was
due to Plaintiff. Docs. 39 at 3-4, 39-2.
are three statutory provisions under which attorneys
representing claimants in social security disability cases
may be compensated: 42 U.S.C. § 406(a), § 406(b)
and 28 U.S.C. § 2142(d) (the “EAJA”).
Section 406(a) provides for fees for work done before the
Commissioner at the administrative level, paid out of the
claimant's past-due benefits awarded, which is capped at
25% of the past-due benefits or a lesser fixed amount. 42
U.S.C. § 406(a)(2)(A)(ii)(I)-(II). For fees incurred
representing claimants in federal court, claimants and their
attorneys may seek fees under two statutory provisions, 42
U.S.C. § 406(b) and the EAJA. Fee awards may be made under
both the EAJA and § 406(b), but the claimant's
attorney must refund to the claimant the amount of the
smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789,
was awarded $6, 281.73 in attorney's fees under the EAJA
(Docs. 33, 37). His counsel now seeks attorney's fees
pursuant to § 406(b), which provides, in relevant part,
Whenever a court renders a judgment favorable to a claimant .
. . who was represented before the court by an attorney, the
court may determine and allow as part of its judgment a
reasonable fee for such representation, not in excess of 25
percent of the total of the past-due benefits to which the
claimant is entitled by reason of such judgment.
42 U.S.C. § 406(b)(1)(A). The statute further provides
that it is unlawful for an attorney to charge, demand,
receive, or collect for services rendered in connection with
proceedings before a court any amount in excess of that
allowed by the court. Id. § (b)(2).
Accordingly, to receive a fee under this statute, an attorney
must seek court approval of the proposed fee, even if there
is a fee agreement between the attorney and the client.
See Gisbrecht, 535 U.S. at 807. In Bergen v.
Comm'r of Social Security, 454 F.3d 1273,
1277 (11th Cir. 2006), the Eleventh Circuit held that §
406(b) “authorizes an award of attorney's fees
where the district court remands the case to the Commissioner
of Social Security for further proceedings, and the
Commissioner on remand awards the claimant past-due
benefits.” Because Plaintiff was awarded past-due
benefits following remand, the Court may award attorney's
fees under § 406(b). See id.
noted, Plaintiff was awarded past-due disability benefits in
the amount of $122, 496.00. Doc. 39 at 3. Ms. Avard timely
filed the present Petition pursuant to 42 U.S.C. §
406(b) seeking an award of the balance of the 25%, $30,
624.75, for representation of Plaintiff before this Court.
Id. at 1 Doc. 39 at 1-4; see also Doc.
39-1. In support of the Petition, Plaintiff provides the fee
agreement between Ms. Avard and Plaintiff, which states that
Ms. Avard “may charge 25% of retroactive benefits
pursuant to [§] 406(b) subject to approval by the Court,
representing work done before the Federal Court.” Doc.
39-3. As noted, the Commissioner does not oppose
Plaintiff's Petition for fees. Doc. 39 at 2. Petitioner
recognizes she must refund to Plaintiff the smaller fee if
awarded fees under both the EAJA and § 406(b). Doc. 39
contends that the amount of the fee requested is reasonable
under § 406(b) and Gisbrecht, 535 U.S. 789.
“A fee pursuant to a contingency contract is not
per se reasonable.” McGuire v. Su
livan, 873 F.2d 974, 979 (7th Cir.
1989). The contingency fee negotiated by the claimant and his
counsel is not reasonable if the agreement calls for fees
greater than the twenty-five percent statutory limit, the
agreement involved fraud or “overreaching” in its
making, the resolution of the case was unreasonably delayed
by the acts of the claimant's attorney, or would provide
a fee “so large as to be windfall to the
attorney.” Wells v. Su livan,
907 F.2d 367, 372 (2d Cir. 1990); McGuire, 873 F.2d
at 981. Finally, “because [§] 406(b) requires an
affirmative judicial finding that the fee allowed is
‘reasonable,' the attorney bears the burden of
persuasion that the statutory requirement has been
satisfied.” Gisbrecht, 535 U.S. at 807 n.17.
The Commissioner is not opposed to the rate or the amount
sought. Upon review of the case, the Court finds that the
amount is reasonable. The fee is consistent with that agreed to
by Plaintiff and is uncontested by the Commissioner.
Uncontested Petition and Memorandum in Support for Reasonable
Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 39)
Attorney fees in the amount of $30, 624.75
are awarded to attorney Carol Avard and may be paid directly
$6, 281.73 awarded under the EAJA (Docs. 33,
37) is ...