Smith v. Commissioner of Social Security

Filing 26

ORDER granting 24 unopposed Motion for 406(b) Attorney Fees. Signed by Magistrate Judge Thomas E. Morris on 10/21/2013. (MLG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PAUL SMITH,
Plaintiff,
vs.

CASE NO. 3:08-cv-406-J-16TEM

CAROLYN W. COLVIN,1
Commissioner of Social Security,
Defendant.

ORDER
This case is before the Court on Plaintiff’s motion for an award of attorney fees
pursuant to 42 U.S.C. § 406(b) (Doc. #24, Motion), filed September 26, 2013. Plaintiff’s
counsel in this Social Security disability case, F. Emory Springfield, seeks compensation
under a contingency fee contract which provides for attorney fees equal to twenty-five
percent of the past due benefits Plaintiff was awarded in the case (Doc. #24, Ex. B).
Defendant’s counsel does not oppose this motion. See Doc. #24 at 1.
Plaintiff’s counsel represented Plaintiff in a civil action before this Court for judicial
review of the Commissioner’s unfavorable decision. Doc. #24 1. This Court reversed the
Commissioner’s decision and remanded the case for further proceedings. See Doc. #22.
Upon remand, an Administrative Law Judge (ALJ) issued another unfavorable decision.
The Appeals Council took review of that unfavorable decision and remanded it to another
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Carolyn W. Colvin
should be substituted for Commissioner Michael J. Astrue as the defendant in this suit. No
further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g).

ALJ who issued a favorable decision. See Doc. #24 at Ex. A. Pursuant to the contingent
Social Security Agreement entered into by Plaintiff and his attorney, Plaintiff’s counsel now
seeks a fee of $26,820.25, representing 25% of Plaintiff’s past due benefits.
Under 42 U.S.C. § 406(b), an attorney who secures a favorable result for his client
upon remand from federal court may petition the Court for a fee not in excess of 25% of the
total past-due benefits to which the claimant is entitled. 42 U.S.C. § 406(b)(1)(A). 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 (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. The
Court’s section 406(b) reasonableness analysis is not meant to supplant the contingencyfee arrangement, which the Supreme Court recognized as the most common fee
arrangement in social security cases. Id. at 800. In fact, the Supreme Court counsels that
the parties’ fee agreement is the first place the Court should turn in assessing the
reasonableness of a fee. Id. at 808. Other key considerations include the character of the
representation and the results the representation achieved. Id. For example, “[i]f the
attorney is responsible for delay” or “[i]f the benefits are large in comparison to the amount
of time spent on the case” the Court may appropriately reduce the fee. Id.
The court has reviewed the contingent fee contract and has considered the
character of the representation and the results the representative achieved and finds that

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the contingent fee contract is reasonable in this case.2
Ordinarily, to prevent “double-dipping” the Court would direct Plaintiff’s counsel to
either refund the EAJA award to Plaintiff upon receipt of the 406(b) award, or alternatively,
the Court would deduct that sum from counsel’s recovery. However, in this instance such
action is inappropriate as Plaintiff did counsel did not receive EAJA fees. Further, the
record reveals Plaintiff’s counsel represented Plaintiff at the administrative level, but is
silent on whether Plaintiff’s counsel received 406(a) fees for his work. The Court, therefore,
will not deduct 406(a) fees from the amount due to Plaintiff’s counsel, but reminds counsel
that his award of attorney fees is not to exceed 25% of the past-due benefits, inclusive of
406(a) fees, 406(b) fees and EAJA fees.
Accordingly, upon due consideration, it is hereby ORDERED:
1.

Plaintiff’s counsel’s motion for an award of attorney fees pursuant to 42
U.S.C. § 406(b) (Doc. #24) is GRANTED. The Court finds that a reasonable
attorney’s fee for Plaintiff’s counsel, F. Emory Springfield, for representation
of Plaintiff in this case is $26,820.25. The Commissioner shall now pay F.
Emory Springfield the sum of $6,000 from past-due benefits in escrow in this
case. If Plaintiff’s counsel experiences difficulty in collecting the remainder of
his fee from Plaintiff, then the Commissioner shall withhold benefits from the

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The Court has also taken into account that the Commissioner does not object to
the instant fee request. Thus, this decision should not be viewed as precedent in a case
where the rate is contested.
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Plaintiff and his family to the extent of Plaintiff’s counsel’s approved fee.3
2.

The Clerk shall enter Judgment accordingly.

DONE AND ORDERED at Jacksonville, Florida this 21st day of October, 2013.

Copies to all counsel of record
and pro se parties, if any

3

The Social Security Administration inadvertently withheld only $6,000 of Plaintiff’s
past-due benefits in escrow to pay attorney fees in this case. The Administration
subsequently alerted Plaintiff to their mistake, and advised Plaintiff that if Plaintiff’s counsel
experiences difficulty collecting the difference, then the Administration will withhold the
amount due from Plaintiff’s benefits and Plaintiff’s children’s auxiliary benefits (Doc. #25).
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