GARLAND v. ASTRUE et al

Filing 28

ORDER GRANTING 26 Motion for Attorney Fees. Counsel is DIRECTED to refund to the Plaintiff the Courts prior award of $9,491.76 in attorneys fees as required by the EAJA. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/25/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DEBORAH GARLAND,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 5:12-CV-509 (MTT)

ORDER
Before the Court is the Plaintiff’s motion for attorneys’ fees under 42 U.S.C.
§ 406(b)(1) following the remand of her claim for Social Security benefits and
subsequent determination by the Commissioner that she was entitled to disability
benefits. (Doc. 26).
On December 6, 2014, the Court adopted the Recommendation of Magistrate
Judge Charles H. Weigle to remand the Plaintiff’s claim for Social Security disability
benefits to the Commissioner for further consideration. (Docs. 17, 18). The Court
subsequently awarded the Plaintiff $9,491.76 in attorneys’ fees pursuant to the Equal
Access to Justice Act (“EAJA”). (Doc. 23). On remand, the Plaintiff was awarded past
due benefits of $73,340.12,1 of which 25% is $18,335.03. The Plaintiff requests a fee of
$12,335.03, which is $18,335.03 minus an administrative fee of $6,000. The

1

The letter from the Social Security Administration does not give the amount of past-due benefits, but
states $18,335.03 was withheld in case the representative was entitled to payment, and explains it is
customary to withhold 25% of past due benefits. (Doc. 26-3 at 5). The above amount of past-due
benefits, represented in the Plaintiff’s motion, is based on the withheld amount.

Commissioner does not oppose this amount, nor has the Commissioner objected to the
motion’s timeliness.2 (Doc. 27).
Under § 406(b), “[w]henever 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). “In
case of any such judgment, no other fee may be payable or certified for payment for
such representation except as provided in this paragraph.” Id. Attorneys' fees may be
awarded pursuant to this subsection “where the district court remands the case to the
Commissioner of Social Security for further proceedings, and the Commissioner on
remand awards the claimant past-due benefits.” 3 Bergen v. Comm'r of Soc. Sec., 454
F.3d 1273, 1277 (11th Cir. 2006).
In many cases, attorneys' fees will also be available under the EAJA, which
permits a prevailing party in a civil action brought by or against the United States to be
2

Pursuant to M.D. Ga. L.R. 9.4, motions for attorneys’ fees under 42 U.S.C. §§ 406(b) or 1383(d)(2) must
be filed no later than 30 days after the date of the Social Security letter sent to the plaintiff’s counsel of
record at the conclusion of the Agency’s past-due benefit calculation stating the amount withheld for
attorneys’ fees. The letter from the Social Security Administration is dated December 26, 2015. (Doc.
26-3 at 1). The motion was filed on February 8, 2016. Nevertheless, the Court considers the motion
because the Commissioner has not objected to its timeliness. Though the Commissioner has no financial
stake, she is akin to a trustee for the Plaintiff. See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002).

3

While § 406(b) controls awards for representation before a court, 42 U.S.C. § 406(a) controls fees for
representation before the Commissioner. The circuits are split on whether there is a combined 25% cap
on fees awarded pursuant to § 406(a) and § 406(b) or whether the 25% limit only applies to fees awarded
pursuant to § 406(b). See Clark v. Astrue, 529 F.3d 1211, 1214-15 (9th Cir. 2008) (denoting split). In
Dawson v. Finch, 425 F.2d 1192 (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.” Id. at 1195; see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc) (adopting as binding precedent the decisions of the former Fifth Circuit rendered prior to
October 1, 1981). Thus, it remains the law in this circuit that fees awarded pursuant to § 406(a)(b) for
representation before the Commissioner and the court may not exceed the 25% limit. See Paltan v.
Comm'r of Soc. Sec., 518 F. App'x 673, 674 (11th Cir. 2013).

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awarded fees and other expenses payable by the United States unless the
government's position was “substantially justified” or “special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A). If the case is remanded, counsel may obtain
an EAJA fee award before knowing whether § 406(b) fees will be available after
remand. “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 refun[d] to the claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796
(2002) (alteration in original) (internal quotation marks and citation omitted). In lieu of
the attorney refunding the smaller fee, the attorney may request an award under §
406(b) be reduced by the amount of an earlier EAJA award. Jackson v. Comm'r of Soc.
Sec., 601 F.3d 1268, 1274 (11th Cir. 2010).
Section 406(b) does not displace contingent-fee agreements between attorneys
and Social Security claimants. Gisbrecht, 535 U.S. at 807. Such agreements, however,
may not exceed 25% of the past-due benefits awarded, and “the attorney for the
successful claimant must show that the fee sought is reasonable for the services
rendered.” Id. To determine the reasonableness of the fee requested, courts may
request the attorney submit “a record of the hours spent representing the claimant and a
statement of the lawyer's normal hourly billing charge for noncontingent-fee cases.” Id.
at 808. Though the Supreme Court did not provide a list of factors for courts to
consider, they did cite with approval cases in which courts reduced the fee requested
“based on the character of the representation and the results the representative

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achieved,” such as if the attorney was responsible for delay or if the benefits received
were large compared to the amount of time spent on the case. Id.
Plaintiff Deborah Garland and attorney Charles L. Martin entered into a fee
agreement whereby the Plaintiff agreed to pay her attorney “25% of all back benefits
paid me and my family for your work in court.” (Doc. 26-4 at 3). The total time Martin
spent on the case for representation in this Court was 53.45 hours.4 (Doc. 26-6, ¶ 1).
Martin states that his normal billing rate for non-contingent fee Social Security cases is
$425.00 per hour. (Doc. 26-6, ¶ 5). He also avers that since 1985 at least 90% of his
practice has been in the area of Social Security law. (Doc. 26-6, ¶ 4). Because the
Plaintiff’s claim for benefits was initially denied, it is unlikely she would have been
successful without the attorney’s efforts in this Court. As discussed above, these efforts
resulted in back benefits of approximately $73,340.12. There is no indication the
attorney was responsible for undue delay, and the fee is not so large as to be an
unreasonable windfall.
Therefore, the Court concludes that the requested fee of $12,335.03 is
reasonable, and the Plaintiff’s motion for attorney’s fees is GRANTED. (Doc. 26).
Counsel is DIRECTED to refund to the Plaintiff the Court’s prior award of $9,491.76 in
attorney’s fees as required by the EAJA.

SO ORDERED, this 25th day of March, 2016.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
4

EAJA attorney’s fees were only awarded for 50.85 hours. (Doc. 23 at 3).

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