United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE
before the Court is Shea A. Fugate's Unopposed Request
for Authorization to Charge a Reasonable Fee Pursuant to 42
U.S.C. §406(b) (Doc. 26). The motion follows 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 remanding the case
pursuant to sentence four of 42 U.S.C. § 405 (Docs. 22,
23). Plaintiff's attorney seeks an award of $67, 216.38,
pursuant to a contingency agreement with Plaintiff. She
represents that the motion is not opposed.
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)-(I I) .
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) (“the
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. Wood v. Comm'r of Soc.
Sec., 861 F . 3d 1197, 1205-6 (11t h Cir.
2017); see also Paltan v. Comm'r of Soc.
Sec., 518 F. App'x. 673 11th Cir. 2013); Boo
kman v. Comm'r o f Soc. Sec., 490 F . App'x 314
(11th Cir. 2012) .
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 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 C ir.
2010) (no ting 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).
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 Fed.Appx. 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 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.
Fugate has been representing Plaintiff since June 13, 2012,
after the Appeals Council issued its initial denial. A prior
action was filed in this Court (6:12-cv-938-GJK), and the
case was remanded for further administrative proceedings (Tr.
632-640). An attorney fee under the EAJA was awarded in that
case, in the amount of $4, 976.10 (Doc. 30 in Case No.
remand, another unfavorable administrative decision was
issued, and, after exhausting administrative appeals,
Plaintiff filed this action (Doc. 1). The claim was remanded
again (Docs. 22 and 23), and, after judgment, the Court
granted counsel attorney's fees of $4, 228.52, under the
EAJA (Doc. 25).
second remand, the Commissioner issued a fully favorable
decision and awarded Plaintiff past due benefits in the
amount of $219, 866.00 (Doc. 26-2) as well as dependent
benefits of $3, 714.00 (Doc. 26-3); $43, 145.00 (Doc. 26-4);
and $43, 145.00 (Doc. 26-5). One-fourth of the total past due
benefits awarded is $82, 421.00. Petitioner represents that
she received a fee of $6, 000.00 at the administrative level
(Doc. 26-2). Plaintiff's counsel asks this Court to
authorize a fee of $67, 216.38, noting that
she has deducted the previously awarded 406(a) fee ($6,
000.00) and the total of the EAJA fees ($9, 204.62) from her
request. The amount sought by Ms. Fugate is consistent with
the statutory framework and authority discussed above. The
Court proceeds to determine whether this amount is
measure, $67, 216.38 is an exceptionally handsome fee. But,
consideration is given to the fact that Ms. Fugate has
represented her client since Jun 13, 2012, through two
federal suits and administrative remands. In this light, the
Court does not find the fee to be so out of line as to
constitute a windfall. Nor is there any indication that
counsel was responsible for delay or any other factor which
would serve to make the award unreasonable. And, the fee is
consistent with the contract with her client and is not
opposed by the Commissioner. Accordingly, ...