United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge.
before the Court are the following motions filed by
“Plaintiff's representative, Jeffrey W.
1) Unopposed Motion for Attorney Fees Pursuant to 42 U.S.C.
§406(b) (Doc. 26); and
2) Unopposed Motion to Reopen Case to Process Plaintiff
Attorney's Unopposed Motion for Attorney Fees Pursuant to
42 U.S.C. §406(b) (Doc. 27).
consideration, the Motion for Attorney Fees is denied,
without prejudice, and the Motion to Reopen the case is
denied, as unnecessary.
25, 2014, Plaintiff, through counsel Kimberly I. Daniels,
filed this action pursuant to the Social Security Act, Title
42 United States Code Section 405(g), to obtain judicial
review of a final decision of the Defendant, Commissioner of
the Social Security Administration (the
“Commissioner”) denying her claim for Disability
Insurance Benefits (Doc. 1). The Commissioner answered and
the parties consented to the jurisdiction of the United
States Magistrate Judge (Docs. 10, 11). Plaintiff moved for
an extension of time (Doc. 17), and, on December 3, 2014, she
filed a twenty one page brief in support of her Complaint
(Doc. 19). The Commissioner filed a response brief (Doc. 20)
and, on July 2, 2015, the Court reversed the
Commissioner's administrative decision and remanded the
matter pursuant to sentence four of 42 U.S.C. §405(g)
(Doc. 21). A judgment in Plaintiff's favor was entered on
July 6, 2015 (Doc. 22), and the case was closed. The docket
reflects that at all times up through judgment, the only
attorney appearing on Plaintiff's behalf was Kimberly I.
March 17, 2017, Plaintiff, “by her attorney, Jeffrey W.
Hensley, ” moved the court pursuant to 42 U.S.C. §
405(g) to enter final judgment for Plaintiff “as a
prerequisite to filing a motion for award of attorney fees
pursuant to the Equal Access to Justice Act.” (Doc.
23). Observing that final judgment under Section 405(g) was
already entered in Plaintiff's favor, the Court denied
the motion, noting procedural irregularities and finding that
counsel did not establish that Plaintiff was entitled to
another judgment, nor that the Court had jurisdiction to
grant it (Doc. 25). The instant motions filed shortly
separate motions, Mr. Hensley moves to reopen the case in
order to award him $12, 495.00 in attorney fees, pursuant to
42 U.S.C. §406(b), “for work before the
Court.” (Doc. 26 at 1, and Doc. 26-1). He attaches to
the motion “a copy of the attorney's time
records” (Doc. 26-1) and represents:
Plaintiff, by her attorney, Jeffrey W. Hensley,
filed a Complaint seeking judicial review of an unfavorable
decision. The Court reversed the Commissioner's decision
and remanded the case for further proceedings. Upon remand,
the Commissioner entered a favorable decision on February 16,
2017. The Notice of Award (NOA) was issued on March 7, 2017.
See Exhibit “A” attached hereto. The claimant was
awarded the sum of $79, 688.00 in past due benefits of which
the sum of $19, 922.00 has been withheld in anticipation of
direct payment of attorney Fees. The undersigned is
requesting that the Court issue an order awarding
him attorney fees to be paid by the claimant of $12,
495.00. The undersigned will petition the Commissioner,
pursuant to 42 U.S.C. § 406(a) for attorney fees of
$7427.00 to be paid by the claimant from the remainder of the
funds being withheld.
27 at 1-emphasis added). Mr. Hensley notes that the total
attorney fee being sought does not exceed 25% of the past due
benefits and represents that no other attorney fees have been
or will be paid. The motions purport to be unopposed by the
Office of General Counsel.
are three statutory provisions under which attorneys
representing claimants in Social Security Disability cases
may be compensated: 42 U.S.C. §§ 406(a) and 406(b),
and 28 U.S.C. § 2142(d). Section 406(a) provides the
exclusive avenue for attorneys seeking fees for work done
before the Commissioner at the administrative level. The fees
awarded under §406(a) are paid out of the claimant's
past-due benefits awarded. 42 U.S.C. § 406(a)(2)(A) and
(B). Section 406(a) caps the fees that may be awarded at
twenty-five percent of past-due benefits awarded or a lesser
fixed amount. 42 U.S.C. § 406(a)(2)(A)(ii)(I)-(II).
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 Equal
Access to Justice Act, 28 U.S.C. § 2142(d)
(“EAJA”). Under Section 406(b), upon entry of
judgment in favor of a claimant, the Court may award a
reasonable fee for work performed before the Court, which is
paid out of the claimant's past-due benefits awarded. 42
U.S.C. § 406(b)(1)(A). Section 406(b) imposes a cap on
the total amount of fees that may be awarded. 42 U.S.C.
§ 406(b)(1)(A). Section 406(b) provides that a ...