United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge
before the Court is the Opposed Request for Authorization to
Charge a Reasonable Fee, pursuant to 42 U.S.C. §406(b),
filed by Plaintiff's counsel (Doc. 39). On September 26,
2012, I entered an order reversing the Commissioner's
final decision and remanding the case back to the Social
Security Administration, pursuant to sentence four of 42
U.S.C. §405 (Doc. 33).
Plaintiff's counsel petitions the Court for authorization
to charge his client a fee for federal court representation
in the amount of $3, 129.25 (Doc. 39). The fee is based on a
contingency fee agreement between counsel and Plaintiff (Doc.
39-1 at 1), and the Commissioner's letter notification
that Plaintiff was awarded past due benefits (Doc. 29-1). The
Commissioner has filed a response in opposition (Doc. 40).
The Applicable Law
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 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) or “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 Court may not award fees “in excess of
25 percent of the total of the past-due benefits to which the
claimant is entitled.” 42 U.S.C. § 406(b)(1)(A).
Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.
1970), the Fifth Circuit held that 42 U.S.C. § 406
“precludes the aggregate allowance of attorney's
fees greater than twenty-five percent of the past due
benefits received by the claimant.” As the Eleventh
Circuit has adopted the law of the former Fifth Circuit as
binding precedent,  Dawson applies here, and the
total fee under Sections 406(a) and (b) cannot exceed 25% of
the past-due benefits. See Paltan v. Comm'r of Soc.
Sec., 518 F. App'x 673 (11th Cir. 2013); Bookman
v. Comm'r of Soc. Sec., 490 F. App'x 314 (11th
EAJA permits a claimant to seek an award of fees against the
government for work that is done before the Court if the
claimant prevailed and the position of the Commissioner is
not substantially justified. 28 U.S.C. § 2412(d)(1)(A).
The EAJA contains a Savings Provision providing that
“where the claimant's attorney receives fees for
the same work under both [406(b) and the EAJA], the
claimant's attorney refunds to the claimant the amount of
the smaller fee.” 28 U.S.C. 2412 note, Act of Aug. 5,
1985, Pub.L. No. 99-80, § 3, 99 Stat. 183, 186
(unmodified). See Jackson v. Comm'r of Soc.
Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (noting that
the attorney may choose to effectuate the refund by deducting
the amount of an earlier EAJA award from his subsequent 42
U.S.C. § 406(b) request); Mills v. Colvin, Case
No. CV413-044, 2016 WL 4223649, at *2 (S.D. Ga. Aug. 9, 2016)
(citing Gisbrecht v. Barnhart, 535 U.S. 789, 806
application of these provisions means the total fee under
Sections 406(a) and (b) cannot exceed 25% of the past-due
benefits, and double payment under the EAJA is not allowed.
See, e.g., Paltan, 518 F. App'x at 674;
Bookman, 490 F. App'x at 314; Westfall v.
Comm'r of Soc. Sec., Case No. 6:14-cv-784-DAB (M.D.
Fla. April 19, 2016); Bibber v. Comm'r of Soc.
Sec., No. 6:12-cv-1337-ORL, 2015 WL 476190 (M.D. Fla.
Feb. 5, 2015); Carbonell v. Comm'r of Soc. Sec.,
No. 6:11-CV-400-ORL-22; 2015 WL 631375 (M.D. Fla. Feb. 13,
2015) (“No matter what statute or combination of
statutes an attorney uses to obtain fees after a successful
Social Security appeal, binding Eleventh Circuit precedent
caps the aggregate amount of attorney's fees at 25
percent of the past-due benefits awarded to claimant”).
itself must also be reasonable. In capping the fee at 25%,
“Congress ... sought to protect claimants against
‘inordinately large fees' and also to ensure that
attorneys representing successful claimants would not risk
‘nonpayment of [appropriate] fees.'”
Gisbrecht, 535 U.S. at 805 (citations omitted).
“Within the 25% boundary ... the attorney for the
successful claimant must show that the fee sought is
reasonable for the services rendered.” Id. at
807. In making this reasonableness determination, a court can
consider several factors, including: (1) whether the
requested fee is out of line with the “character of the
representation and the results the representative
achieved;” (2) whether the attorney unreasonably
delayed the proceedings in an attempt to increase the
accumulation of benefits and thereby increase his own fee;
and (3) whether “the benefits awarded are large in
comparison to the amount of time counsel spent on the case,
” the so-called “windfall” factor. In these
instances, a downward reduction may be in order and the Court
can appropriately reduce the fee. Id. at 805, 808.
The Fee Calculation
received an award of past-due benefits in the amount of $36,
517.00 (Doc. 39-2 at 4). Twenty-five percent of that award is
$9, 129.25 (Doc. 39 at 2; Doc. 40 at 2). Plaintiff's
counsel petitions the Court for authorization to charge his
client a fee for federal court representation in the amount
of $3, 129.25 (Doc. 39). He arrived at this number based on
the following calculations:
3. The attorney fee due under the fee agreement between
Petitioner and Plaintiff payable from Ms. Caraballo's
past-due benefits is $4, 620.03 [25% of the past-due
benefits, $9, 129.25, minus the EAJA fees awarded, $4, 509.22
(Doc. 38, page 2), equals $4, 620.03].
4. Petitioner has reduced the amount of the fee requested to
$3, 129.25 so that the total of the 406(b) fee, $3, 129.25,
and the 406(a) fee paid for work done at the administrative
level, $6, 000.00 (Appendix 2, page 3), does not exceed