United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
B. McCOUN III UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's
[Opposed] Motion for Attorney Fees Under 42
U.S.C. § 406(b) (Doc. 27) and Defendant's
response in opposition (Doc. 31).
motion, Plaintiff's attorney seeks an Order, pursuant to
42 U.S.C. § 406(b), approving an award of attorneys'
fees in the amount of $13, 675.00. She claims she has not
received an attorney's fee award under the Equal Access
to Justice (EAJA); her attorney had been authorized to
receive a fee in this case in the amount of $15, 900; and she
has been notified that the SSA is withholding the amount of
$13, 675, which represents the balance of the 25% of past due
benefits awarded. (Doc. 27).
opposes the motion, claiming Plaintiff's attorney has
failed to show that the request is reasonable and will not
result in a windfall to the attorney to the detriment of the
client. She argues the district court must conduct an
independent reasonableness determination as to the
appropriate fee. She argues that Plaintiff's attorney did
not include in his motion the number of hours incurred
representing Plaintiff in this action or his normal hourly
rate. In the absence of such information, she submits that
the motion should be denied. (Doc. 31).
award of attorney's fees is authorized under 42 U.S.C.
§ 406(b) where the district court remands the case to
the Commissioner for further proceedings, and the
Commissioner on remand awards the claimant past-due
benefits. Bergen v. Comm'r of Soc.
Sec., 454 F.3d 1273, 1276-78 (11th Cir. 2006). Under
those circumstances, the claimant may return to the court and
seek fees not exceeding twenty-five percent of the past-due
benefits awarded. See 42 U.S.C. §406(b)(1)(A);
Paltan v. Comm'r of Soc. Sec., 518 F. App'x
673, 674 (11th Cir. 2013). The fees, however, must still be
reasonable and may be offset against a previous
award. See Gisbrecht v. Barnhart, 535
U.S. 789, 808 (2002); Jackson v. Comm'r of Soc.
Sec., 601 F.3d 1268, 1274 (11th Cir. 2010). An attorney
who is successful in claiming both EAJA fees from the United
States and an award under § 406(b) (which comes out of
past-due benefits) must refund “to the claimant the
amount of the smaller fee.” Gisbrecht, 535
U.S. at 796 (2002). The attorney may elect to deduct an
earlier EAJA award from a subsequent 406(b) award rather than
refunding the smaller EAJA fee and accepting the 406(b) in
full. Green v. Comm'r of Soc. Sec., 390 F.
App'x 873, 874 (11th Cir. 2010).
here, section 406 of the Social Security Act provides for two
types of fee awards, both of which are paid from the
claimant's past-due benefits. Section 406(a) authorizes
fees for representation at the administrative level. Fees
awarded under this section are capped at 25% of that amount
or a lesser fixed amount. 42 U.S.C. § 406(a)(2)(A), (C).
Section 406(b) authorizes fees for representation in federal
court. Fees awarded under this section also are capped at 25%
of that amount. 42 U.S.C. § 406(b)(1)(A). Where an
attorney receives a fee award pursuant to section 406(a) for
administrative work and section 406(b) for work before a
court, the aggregate of the fees cannot exceed 25% of
past-due benefits. Dawson v. Finch, 425 F.2d 1192,
1195 (5th Cir. 1970) (“We are fully convinced 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. Dawson has
already been authorized by the Secretary to charge the
maximum. He is entitled to no more.”); Wood v.
Comm'' of Soc. Sec., 861 F.3d 1197, 1206 (11th
Cir. 2017) (affirming Dawson as binding precedent
and finding the district court did not err in its
interpretation and application of Dawson).
case, counsel undertook to represent the claimant on a
contingency fee basis. (See Doc. 27 at 4-7).
According to the fee agreement dated July 18, 2006, for work
performed before the Social Security Administration,
Plaintiff's attorney was entitled to 25% of the
“total past-due benefits awarded ... or $5, 300.00,
whichever is less.” Id. at 4. The subsequent
fee agreement dated October 10, 2007, provides, in pertinent
part, “If I lose at the ALJ hearing and my attorney
agrees to appeal and I win my case later, the fee will be
[25%] of all past due benefits awarded in my case.”
Id. at 6.
appeal from the administrative decision, the Court entered
Judgment for Plaintiff, reversing the decision of the
Commissioner and remanding the case for further proceedings.
(Docs. 20, 21). Thereafter, the Court denied without
prejudice Plaintiff request for attorney's fees under the
Equal Access to Justice Act (EAJA). (Docs. 22,
did not re-file her motion for EAJA fees, but instead filed
the instant motion following the resolution of her claim on
remand. Plaintiff states that her attorney “had been
authorized to receive a fee in this case in the amount of
$15, 900.00” (Doc. 27 at 2); however, it is entirely
unclear if all or a portion of these fees have been received
and in what amount.
August 18, 2017, after initial review of the motion and
response, this Court directed Plaintiff's counsel to
supplement his motion within ten (10) days as to the
following: the total amount of past-due benefits awarded to
Plaintiff; the status of any award of fees under 42 U.S.C.
406(a) or other fees received by counsel; and the number of
hours counsel incurred in representing Plaintiff in this
action. (Doc. 32). Plaintiff's counsel has not
supplemented his motion or otherwise responded.
record presented, the total amount of past due benefits
awarded to Plaintiff is unknown. In addition, it is unclear
if Plaintiff s counsel has received some or all of the $15,
900, presumably awarded under section 406(a). As such, I am
unable to ascertain whether the combined fees received ...