United States District Court, S.D. Georgia, Augusta Division
K. EPPS UNITED STATES MAGISTRATE JUDGE.
Court GRANTS IN PART Plaintiff's motion for
attorney's fees (doc. no. 22), and ORDERS the
Commissioner to pay Plaintiff's counsel $16, 405.50 out
of Plaintiff's past-due benefits pursuant to 42 U.S.C.
§ 406(b). Importantly, the Court herein approves a total
fee award under § 406(b) of $20, 500.00. However, the
Court has deducted from this total the prior fee award of $4,
094.50 made pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”), which
Plaintiff's counsel shall retain. See Jackson v.
Comm'r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir.
2010) (preferring courts deduct EAJA award from § 406(b)
award rather than plaintiff's counsel having to issue
refund of EAJA award); see also Paltan v. Comm'r of
Soc. Sec., 518 F. App'x 673, 674 (11th Cir. 2013).
9, 2015, the Court granted a reversal and remand pursuant to
sentence four of 42 U.S.C. § 405(g), and awarded
Plaintiff $4, 094.50 in attorney's fees, $400.00 in
costs, and $23.00 in expenses under the EAJA. (Doc. nos. 16,
19, 21.) On January 16, 2017, the Commissioner awarded
Plaintiff $145, 234.00 in past-due benefits. (Doc. no. 22-3,
pp. 1-6.) On March 13, 2017, Plaintiff filed the instant
motion seeking attorney's fees of $36, 308.00 pursuant to
a contingency fee contract for twenty-five percent of
Plaintiff's past-due benefits. (Doc. no. 22.) The
Commissioner opposes the motion, arguing it is untimely and
would result in a windfall to counsel. (Doc. no. 24.)
Motion is Timely.
Rule of Civil Procedure 54(d)(2) requires a motion for
attorney's fees under § 406(b) to be filed within
fourteen days “after entry of judgment.”
Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273,
1277 (11th Cir. 2006). However, it is unclear exactly when
the clock commences. In Biltch v. Astrue, 261 F.
App'x 241, 242 n.1 (11th Cir. 2008), the Eleventh Circuit
recommended district courts fashion a “general order or
a local rule permitting district-wide application of a
universal process for seeking fees under these unique
circumstances.” In fashioning such a general order or
local rule, district courts should “keep in mind
Congress's intent behind § 406(b), to encourage
attorneys to represent Social Security claimants.”
Middle District of Georgia followed this recommendation by
requiring fee motions to be filed “no later than thirty
(30) days after the date of the Social Security letter sent
to the plaintiff's counsel of record.” LR 9.4,
MDGa; see also Brown v. Astrue, No. CV 411-152, 2014
WL 4928880, at *2 (S.D. Ga. Sept. 30, 2014). This Court has
no such rule, but has traditionally provided plaintiff's
counsel thirty days from the date of the Social Security
letter to file for § 406(b) fees. See Jones v.
Astrue, CV 310-038, doc. no. 12, p. 9, adopted
by doc. no. 14 (S.D. Ga. May 25, 2011) (granting
plaintiff's request for thirty-day deadline after Social
Security letter to apply for § 406(b) fees); Curry
v. Astrue, CV 309-068, doc. no. 17, pp. 14-15,
adopted by doc. no. 19 (S.D. Ga. Nov. 18, 2010)
the Social Security Administration issued its Notice of Award
on January 16, 2017, and Plaintiff filed the instant motion
on March 13, 2017. (Doc. no. 22, pp. 2-4.) Plaintiff did not
request, and the Court did not include in the reversal
judgment, a statement specifying a deadline for seeking
attorney's fees under § 406(b). (See doc.
nos. 13, 15, 16.) In light of Congress's intent to
encourage attorneys to represent Social Security claimants,
and in the absence of a local rule, standing order, or
statement setting a specific deadline, this Court finds the
motion timely. See Brown, 2014 WL 4928880 at *2-3
(finding fee petition timely in absence of local rule,
standing order, or statement setting specific deadline).
Reasonableness of the Requested Fee
fee awards in Social Security cases are governed by two
statutes, 42 U.S.C. § 406(b), and 28 U.S.C. § 2412
of the EAJA. Jackson, 601 F.3d at 1271. Under 28
U.S.C. § 2412 of the EAJA, counsel may petition for a
fee award based on an hourly rate. Alternatively, counsel may
seek a reasonable contingency fee pursuant to 42 U.S.C.
§ 406(b) not in excess of “25 percent of the total
of the past-due benefits to which the claimant is
entitled.” Bergen, 454 F.3d at 1276. The fee
is payable “out of, and not in addition to, the amount
of the past-due benefits.” Gisbrecht v.
Barnhart, 535 U.S. 789, 795 (2002). Counsel can obtain a
§ 406(b) award even after receipt of EAJA fees, so long
as the EAJA payment is deducted or refunded to avoid double
recovery. See Pub. L. 99-80, § 3, 99 Stat. 186
(1985); Gisbrecht, 535 U.S. at 796; Brown,
2014 WL 4928880 at *1. Under § 406(b), an attorney must
seek the court's approval even if there is a client
agreement. See Gisbrecht, 535 U.S. at 807.
pursuant to the terms of the contingent-fee agreement,
Plaintiff's counsel seeks $36, 308.00, an amount equal to
25% of the past benefits awarded, and in support submits a
statement showing he spent twenty-four hours representing
Plaintiff on appeal. (Doc. no. 22-4; doc. no. 22-1, pp. 1,
5.) The Commissioner argues the requested award is an
unreasonable windfall of more than $1, 500.00 per hour.
(See doc. no. 24, pp. 3-4.)
as here, there is a valid contingent-fee agreement that does
not exceed the statutory cap of 25% of past due benefits
awarded, the Court should enforce the agreement so long as
“the fee sought is reasonable for the services
rendered.” Gisbrecht, 535 U.S. at 807.
“[C]ourts may reduce the requested fee if the
representation has been substandard, if the attorney has been
responsible for delay, or if the benefits are large in
comparison to the amount of time the attorney spent on the
case.” Jackson, 601 F.3d at 1271 (citing
Gisbrecht, 535 U.S. 789). The Court acknowledges
Plaintiff's counsel's extensive experience in
disability law, as well as the high quality of representation
in this case. (See doc. no. 25, pp. 3-4.)
Furthermore, there is no evidence or suggestion
Plaintiff's counsel is responsible for any delay.
(See doc. no. 24, pp. 3-4.)
award may be unreasonable if it is disproportionally large in
comparison to the time spent on the case, such that the
contingency fee would result in a windfall to claimant's
attorney. See Jackson, 601 F.3d at 1271. However,
the “best indicator of the ‘reasonableness'
of a contingency fee is the contingency percentage ...