United States District Court, M.D. Florida, Orlando Division
KENNETH W. DAYHOFF, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
R. KLINDT UNITED STATES MAGISTRATE JUDGE
cause is before the Court on the Petition for Attorney's
Fees Under 42 U.S.C. § 406(b) (Doc. No. 25;
“Motion”), filed March 22, 2019. Defendant
opposes the relief requested in the Motion. See
Commissioner's Response to Plaintiff's Attorney's
Petition for Fees Under 42 U.S.C. § 406(b) (Doc. No. 26;
“Response”), filed March 29, 2019.
Plaintiff's counsel, Bradley K. Boyd, seeks an award of
$37, 597.63 pursuant to 42 U.S.C. § 406(b). See
Motion at 2, 3. In the Response, Defendant argues that
“the requested award is not reasonable and would be a
windfall to Plaintiff's counsel.” Response at 1.
Defendant asserts that counsel's request “breaks
down to a de facto hourly rate of $1, 708.98.”
Id. at 3.
406(b)(1)(A) states in pertinent part:
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment . .
42 U.S.C. § 406(b)(1)(A). The statute does not impose a
25 percent cap on the aggregate of attorney's fees
awarded under § 406(a)-which are awarded for work done
at the administrative level-and § 406(b). Culbertson
v. Berryhill, 139 S.Ct. 517, 519 (2019). Instead,
“the 25% cap applies only to fees for representation
before the court, not the agency.” Id. at 522.
twenty-five percent ceiling was meant “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, 805 (2002) (citations omitted). “[Section] 406(b)
does not displace contingent-fee agreements as the primary
means by which fees are set for successfully representing
Social Security benefits claimants in court. Rather, §
406(b) calls for court review of such arrangements as an
independent check, to assure that they yield reasonable
results . . . .” Id. at 807. The burden is on
the attorney to “show that the fee sought is reasonable
for the services rendered.” Id. Generally,
“[t]he ‘best indicator of the reasonableness of a
contingency fee in a social security case is the contingency
percentage actually negotiated between the attorney and
client . . . .'” Coppett v. Barnhart, 242
F.Supp.2d 1380, 1383 (S.D. Ga. 2002) (quoting Wells v.
Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)).
the contingency agreement should be given significant weight
in fixing a fee, [the district court] must independently
assess the reasonableness of its terms.” McGuire v.
Sullivan, 873 F.2d 974, 983 (7th Cir. 1989). The
contingency fee negotiated by the claimant and his or her
counsel is not reasonable if the agreement calls for fees
greater than the twenty-five percent statutory limit, the
agreement involved fraud or “overreaching” in its
making, the resolution of the case was unreasonably delayed
by the acts of the claimant's attorney, or would provide
a fee “so large as to be a windfall to the
attorney.” Wells, 907 F.2d at 372 (citation
omitted); see also McGuire, 873 F.2d at 981. Factors
to consider in assessing the reasonableness of the fee
include whether there was unreasonable delay in the
litigation caused by the attorney, the quality of the
representation, the size of the award in relationship to the
time spent on the case, and the likelihood of the claimant
prevailing. See Gisbrecht, 535 U.S. at 808.
Additionally, an attorney who successfully claims both Equal
Access to Justice (“EAJA”) fees from the United
States and an award under 42 § U.S.C. 406(b) must refund
“to the claimant the amount of the smaller fee.”
Id. at 796.
upon review of the record and consideration of the relevant
factors, the Court finds that the fee requested is not
reasonable. Although the fee is not greater than the 25
percent statutory limit, and there is no evidence that
Plaintiff's counsel caused any excessive delays or that
the contingency fee agreement involved fraud or overreaching
in its making, granting fees in the amount requested would
result in a windfall to Plaintiff's counsel. The Court
addresses the relevant factors below.
to the percentage negotiated between the attorney and the
client, the Court notes that Plaintiff and his counsel agreed
that attorney's fees would not exceed 25 percent of the
past-due benefits award. See Plaintiff's
Response to Order to File Attachments to Motion for Attorney
Fees (Doc. No. 28; “Notice”) at Ex. B (Attorney
Employment Contract). The amount of attorney's fees
sought by Plaintiff's counsel ($37, 597.63) is less than
25 percent ($43, 597.63) of Plaintiff's past-due benefits
award ($174, 390.00). Id. at Ex. A (Notice of Award)
at 2, 4. This is because Plaintiff's counsel deducted $6,
000 for the fees he expects to receive under § 406(a).
See Motion at 2. Plaintiff's counsel represents he
will return to Plaintiff the $4, 180.00 previously awarded
pursuant to the EAJA. Id. at 3. Plaintiff's
counsel, however, also represents that the EAJA fees were
“withheld for payment of a Small Business
Administration debt.” Id. at 2.
all the circumstances, however, granting fees in the amount
requested would be unreasonable in relation to the services
rendered and time spent on the case. Plaintiff's counsel
spent 22 hours working on the case. See Notice at
Ex. C. Although an experienced lawyer like Plaintiff's
counsel, see Motion at 3, may have to spend less
time on a case, see Anderson v. Comm'r of Soc.
Sec., No. 2:14-cv-355-FtM-38MRM, 2017 WL 3022333, at *3
(M.D. Fla. July 17, 2017), this case was not overly
complicated. Plaintiff filed a Complaint (Doc. No. 1), an
Affidavit of Indigency (Doc. No. 2) that the Court construed
as Motion to Proceed In Forma Pauperis, and a
Memorandum (Doc. No. 18) opposing the Commissioner's
Decision denying benefits. The Complaint is three pages long,
and other than Plaintiff's name, there is no information
in the document that indicates the Complaint is unique to
Plaintiff. See generally Complaint. The Memorandum
did not raise novel or complex issues of law; the issues in
the case were commonly recurring issues in Social Security
appeals. Cf. Anderson, 2017 WL 3022333 (considering
complexity of case in evaluating reasonableness of requested
§406(b) fee); Ugorek v. Astrue, No.
3:04-cv-1119-J-TEM, 2008 WL 169737, at *5 (M.D. Fla. 2008)
(considering complexity “[i]n accordance with
Gisbrecht”); Alfaro v. Astrue, No.
3:99-cv-1152-J-HTS, 2008 WL 816942, at *5 (M.D. Fla. 2008)
(considering complexity of case in evaluating reasonableness
of the requested § 406(b) fee). Indeed, the analysis
applicable to the facts was only about five pages long, a
portion of which consisted of case law. See
Memorandum at 13-17. The preparation of the Memorandum took
19.6 hours (out of the 22 total hours spent on the case).
See Notice at Ex. C (Invoice). Upon review, the
undersigned does not find this case to have been overly
difficult or time-consuming.
on the Court's analysis of the reasonableness of the fee,
a downward adjustment is in order. Based on the Court's
experience, $200-$250 is a reasonable hourly rate range for
Social Security appeals in this district. Further,
“awarding attorneys up to 2.5 times the non-contingent
hourly rate ‘adequately compensates attorneys for the
risk they assumed in representing claimants on a contingency
basis.'” Anderson, 2017 WL 3022333, at *4
(quoting Davis v. Astrue, 533 F.Supp.2d 1212, 1219
(M.D. Fla. 2007)); see, e.g., Ugorek, 2008
WL 169737, at *5; Alfaro, 2008 WL 816942, at *3.
Here, a rate of $250.00 per hour multiplied by 2.5 to account
for the contingent nature of the representation would result
in a fee of $13, 750.00.
foregoing reasons, it is
Petition for Attorney's Fees Under 42 U.S.C. §
406(b) (Doc. No. 25) is GRANTE ...