United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE .
Petition for Attorney's Fees under 42 U.S.C. §
406(b) (Doc. 26) is pending before the Court. The motion is
unopposed (Doc. 27). On September 18, 2014, the Court 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. 22). Now, counsel petitions the Court for
authorization to charge his client a fee for federal court
representation in the amount of $31, 552.00. The fee is based
on a contingent fee agreement between counsel and Plaintiff
(Doc. 26-2), and the Commissioner's letter notifications
that Plaintiff has been awarded past due benefits (Doc. 26-1
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) (“the EAJA”). Under §
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 Cir. 2012).
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).
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 314; 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
attorney may either deduct the amount of EAJA fees from his
406(b) request or remit the smaller fee to the client. 28
U.S.C. 2412 note, Act of Aug. 5, 1985, Pub.L. No. 99-80,
§ 3, 99 Stat. 183, 186 (unmodified) (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.”); 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
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, the
district 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 $68,
plus past-due benefits as part of the disabled widow's
benefit program in the amount of $81, 375, making a total
of $150, 074. Twenty-five percent of that award is $37,
518.50. Based upon the work performed and the results
obtained, the Court finds that a twenty-five percent
contingency fee is reasonable for the services of
Plaintiff's counsel in this case. Counsel expects to
receive a 406(a) fee award in the amount of $6, 000.00 for
representing Plaintiff at the administrative level (Doc. 26
at 2). A fee in the amount of $4, 681.05 was previously
awarded to Plaintiff under the EAJA (Doc. 25).
consideration of the foregoing, the motion is
GRANTED. Plaintiff's request for §
406(b) fees is approved in the amount of $31,
518.50 which is 25% of past due benefits awarded to
Plaintiff, minus the $6, 000.00 § 406(a) fee her counsel
expects to receive for work performed at the administrative
level. This award is to be paid out of Plaintiff's past
due benefits currently being withheld by the Commissioner.
Upon receipt of these funds, Counsel shall promptly refund
the EAJA fee of $4, 681.05 to Plaintiff.