Tarantino v. Commissioner of Social Security
ORDER granting 23 Unopposed Motion for Attorney's Fees Under 42 U.S.C. § 406(b)(1). Signed by Magistrate Judge Julie S. Sneed on 2/12/2018. (LBL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JAMIE MARIE TARANTINO,
Case No: 8:12-cv-2756-T-JSS
COMMISSIONER OF SOCIAL
THIS MATTER is before the Court on the Unopposed Motion for Attorney’s Fees Under
42 U.S.C. § 406(b)(1) (“Motion”), filed by Plaintiff’s attorney, Stacy B. DeVeau of the Law
Offices of Charles E. Binder and Harry J. Binder, LLP. (Dkt. 23). The Motion is unopposed.
(Dkt. 23 at 4.) For the reasons that follow, the Motion is granted.
In August 2013, on Defendant’s unopposed motion (Dkt. 16), this Court reversed the ALJ’s
decision denying Plaintiff disability benefits and remanded the case to the ALJ to conduct further
proceedings. (Dkts. 17, 18.) Plaintiff’s counsel was awarded fees pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Dkt. 21.) Pursuant to the Court’s order, on remand,
the ALJ held a second hearing and, again, determined that Plaintiff was not disabled. (Dkt. 24 ¶
6.) On appeal, the Appeals Council vacated this decision and remanded to the ALJ for further
proceedings. (Id.) After a third hearing, in November 2017, the ALJ entered a fully favorable
decision, finding Plaintiff disabled and awarding her past due disability benefits. (Id.; Dkt. 24-1,
Ex. C.) The Social Security Administration withheld twenty-five percent of Plaintiff’s past due
benefits for the payment of Plaintiff’s legal fees. (Dkt. 24 ¶ 12; Dkt. 24-1, Ex. C at 3.)
In the Motion, Plaintiff’s attorney seeks an award of a contingency fee pursuant to 42
U.S.C. § 406(b). (Dkt. 23 at 3.)1 Plaintiff’s counsel states that she will remit the previouslyawarded EAJA fees to Plaintiff upon receipt of the fees requested in the Motion. (Id.) See
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (quotation omitted) (“Congress harmonized fees
payable by the Government under EAJA with fees payable under § 406(b) out of the claimant’s
past-due Social Security benefits in this manner: Fee awards may be made under both
prescriptions, but the claimant’s attorney must refund to the claimant the amount of the smaller
“Whenever a court renders a judgment favorable to a claimant . . . 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). 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,” but instead “calls for
court review of such arrangements as an independent check, to assure that they yield reasonable
results in particular cases.” Gisbrecht, 535 U.S. at 807. The single “boundary line” to which
courts must adhere is that “[a]greements are unenforceable to the extent that they provide for fees
exceeding 25 percent of the past-due benefits.” Id. For fees sought within the “25 percent
boundary,” a movant must show that “that the fee sought is reasonable for the services rendered.”
Plaintiff’s counsel is separately seeking approval from the Commissioner of their fees for their time expended on
Plaintiff’s behalf at the administrative level. (Dkt. 24 ¶ 14.) The sum of fees sought from the Commissioner and this
Court, Plaintiff submits, does not exceed twenty-five percent of Plaintiff’s awarded benefits. (Id.)
Plaintiff’s counsel seeks an award of a contingency fee of $16,000 for their time spent on
this appeal in 2012 and 2013, which totaled 27.7 hours. (Dkt. 23 at 3, 4.) The supporting
itemization of hours is identical to the itemization Plaintiff’s counsel submitted in support of
Plaintiff’s motion for an award of fees under the EAJA in September 2013. (Dkt. 20-3, Dkt. 24-1
Ex. B.) Specifically, in November 2013, the Court awarded Plaintiff fees under the EAJA in the
amount of $5,158.57, which was the product of the 27.7 hours worked and the EAJA hourly rates
varying from $183 to $186.64. (Dkt. 21.) In the Motion, Plaintiff’s counsel requests $16,000 for
the same 27.7 hours worked on Plaintiff’s behalf before this Court. Plaintiff’s counsel argues that
this amount should be approved because Plaintiff agreed to a contingency fee of twenty-five
percent of the retroactive benefits she was awarded, and the requested amount is less than twentyfive percent of the retroactive benefits ($24,790). (Dkt. 24-1, Ex. C at 3.)
In assessing reasonableness, courts consider the whether the retainer agreement contains a
fee agreement and whether the sum requested was less than twenty-five percent of the awarded
retroactive benefits. See Vilkas v. Comm’r of Soc. Sec., No. 2:03CV687FTM-29DNF, 2007 WL
1498115, at *1 (M.D. Fla. May 14, 2007) (citing Gisbrecht, 535 U.S. at 807–08 and awarding the
requested contingency fee under § 406(b) because the plaintiff agreed to pay his counsel twentyfive percent of any awarded retroactive benefits under the retainer agreement and the sum
requested was less than twenty-five percent of the awarded retroactive benefits). Here, Plaintiff
agreed to pay the Law Offices of Harry J. Binder and Charles E. Binder, P.C. twenty-five percent
of past due benefits she was awarded (Dkt. 24-1, Ex. A ¶ II), which comports with § 406(b)(1)(A).
And the requested fee of $16,000 is less than twenty-five percent of the awarded retroactive
Further, courts consider “the character of the representation and the results the
representative achieved.” Gisbrecht, 535 U.S. at 808. Here, Plaintiff’s counsel’s initial appeal
resulted in the Court’s reversing and remanding the unfavorable decision. (Dkt. 17.) On remand,
after a second unfavorable decision, Plaintiff’s counsel’s appeals eventually resulted in a fullyfavorable decision and an award of retroactive disability benefits. (Dkt. 24 ¶ 6.) Plaintiff’s counsel
filed the Motion promptly after receiving the notice of the retroactive benefits award. (Id. ¶ 12;
Dkt. 24, Ex. C.)
Thus, the favorable results counsel achieved for Plaintiff and counsel’s
promptness in filing the Motion support the reasonableness of the requested fee. Gisbrecht, 535
U.S. at 808 (reasoning that a reduction in the requested fees is warranted if an attorney is
“responsible for delay . . . so that the attorney will not profit from the accumulation of benefits
during the pendency of the case in court”).
Finally, “[i]f the benefits are large in comparison to the amount of time counsel spent on
the case, a downward adjustment is [ ] in order.” Gisbrecht, 535 U.S. at 808 (explaining that a
time itemization and a statement of the attorney’s normal hourly billing rate is helpful to aid the
court’s reasonableness assessment, while describing the court’s wide discretion in this assessment
because “[j]udges of our district courts are accustomed to making reasonableness determinations
in a wide variety of contexts, and their assessments in such matters, in the event of an appeal,
ordinarily qualify for highly respectful review”). However, when reviewing the contingency fee
requested in terms of the equivalent hourly rate, courts in the Eleventh Circuit have approved
contingency fees that equate to high hourly rates, and the requested contingency fee here equating
$577 per hour is not unreasonable. Carpenter v. Astrue, No. 8:10-CV-290-T-TGW, 2012 WL
367261, at *1 (M.D. Fla. Feb. 3, 2012) (approving a contingency fee equaling approximately $852
per hour); Haynes v. Astrue, No. 8:09-CV-392-T-TGW, 2011 WL 127121, at *1 (M.D. Fla. Jan.
14, 2011) (approving a contingency fee equaling approximately $453 per hour); Vilkas, 2007 WL
1498115, at *2 (approving a contingency fee equaling “approximately $1121.86 per hour for the
5.5 hours she spent in this case” because “[e]ven though the fee request on an hourly basis is high,”
the requested amount was far less than twenty-five percent of the retroactive benefits).
Therefore, the Court approves the attorney’s fees requested by counsel as reasonable.
Accordingly, it is ORDERED that Plaintiff’s Unopposed Motion for Attorney’s Fees Under 42
U.S.C. § 406(b)(1) (Dkt. 23) is GRANTED. Plaintiff’s counsel, the Law Offices of Charles E.
Binder and Harry J. Binder, is awarded $16,000 in fees pursuant to 42 U.S.C. § 406(b), conditioned
upon Plaintiff’s counsel remitting to Plaintiff the previously-awarded $5,158.57 in EAJA fees
(Dkt. 21). See Haynes, 2011 WL 127121, at *2.
DONE and ORDERED in Tampa, Florida, on February 12, 2018.
Copies furnished to:
Counsel of Record
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