United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE.
before the Court are a Motion for Attorney Fees under 42
U.S.C. § 406(b) (Doc. 35) and an Amended Motion for
Award of Attorney Fees under 42 U.S.C. § 406(b) (Doc.
36). The motions follow the issuance of an Order and Judgment
reversing the decision of Defendant, the Commissioner of
Social Security, with respect to Plaintiff's claim for
benefits, and remand of the case pursuant to sentence four of
42 U.S.C. § 405 (Docs. 30, 31). Plaintiff's
attorney, Sarah Bohr, seeks an award of $23, 282.25, pursuant
to a contingency agreement with Plaintiff. Although she
represents that the motion is not opposed, upon review, the
initial motion (Doc. 35) is DENIED, as moot,
and the amended motion (Doc. 36) is DENIED, without
prejudice to renewal, upon the provision of
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. §
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 § 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. Wood v. Comm'r of Soc.
Sec., 861 F.3d 1197, 1205-6 (11th Cir. 2017); see
also 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.
third avenue of attorney compensation, the EAJA permits a
claimant to seek an award of fees against the government for
work that is done before the Court if the claimant prevails
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
her subsequent 42 U.S.C. § 406(b) request).
application of these provisions in this circuit 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 Wood, 861 F.3d at 1206-07 (the
district court did not err by imposing a 25% cap on §
406 fees and by including the EAJA awards in establishing the
cap); see also Paltan, 518 F. App'x.at 674;
Bookman, 490 F. App'x 314; 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 v. Barnhart, 535 U.S. 789, 806, 122 S.Ct.
1817, 152 L.Ed.2d 996 (2002) (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 her 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.
judgment, the Court granted counsel attorney's fees of
$7, 641.16 under the EAJA (Doc. 33, 34). On remand, the
Commissioner issued a fully favorable decision and awarded
Plaintiff past due benefits in the amount of $93, 129.00,
one-fourth of which is $23, 282.25 (Doc. 36-2 at 3).
Plaintiff's counsel asks this Court to authorize and
award a fee of $15, 641.09, noting that “upon receipt
of the amount sought under 406(b), ” counsel will
refund the EAJA fees.
Ms. Bohr addresses the EAJA award, she has not accounted for
any award which may have been made to her or another
representative of Plaintiff pursuant to §
406(a). This information is critical to the
analysis as the Court cannot assure itself that the
sought-after fee would not exceed the 25% cap if a §
406(a) award has been previously sought or approved by the
Commissioner. Absent a statement as to the status of any
§ 406(a) fees awarded (or pending application for same),
the motion is incomplete and the request cannot be
approved. The motion may be renewed upon the
provision of the missing information.