Little v. Berryhill
ORDER granting 22 Motion for Attorney Fees. Signed by Magistrate Judge Jane M. Virden on 2/18/21. (ncb)
Case: 4:19-cv-00056-JMV Doc #: 25 Filed: 02/18/21 1 of 4 PageID #: 1585
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
TIMOTHY SCOTT LITTLE,
CIVIL ACTION NO.
Before the Court are Plaintiff’s motion for approval of $4,651.55 in attorney fees pursuant
to 42 U.S.C. § 406(b) , Defendant’s response , and Plaintiff’s reply . For the reasons set
out below, Plaintiff’s request for approval of payment to his counsel in the amount of $4,651.55
from past-due benefits will be granted.
Timothy Scott Little filed a Social Security appeal in this Court on April 18, 2019, to
challenge the Commissioner’s decision denying his applications for disability benefits. By
Order  dated September 6, 2019, this Court granted Defendant’s unopposed motion  to
remand this action for further proceedings and, by a Final Judgment  entered the same day,
reversed the case and remanded it to the Social Security Administration (the “Agency”) for
further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff’s counsel was
awarded a fee of $4,769.95 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d), by Order  dated November 26, 2019.
Following the Court’s reversal and remand, the Commissioner issued a favorable
Case: 4:19-cv-00056-JMV Doc #: 25 Filed: 02/18/21 2 of 4 PageID #: 1586
decision and, on January 5, 2021, issued a Notice of Award of past-due benefits in the amount of
$61,686.00. Consistent with a contingency fee agreement, Plaintiff now seeks approval under §
406(b) of an award of $9,421.50 minus a credit to Plaintiff for the prior EAJA award
($4,769.95), or $4,651.55.
In his response to the motion, the Commissioner states he “has no direct financial stake in
the answer to the § 406(b) question” but “instead . . . plays a part in the fee determination
resembling that of a trustee for the claimants.” Def.’s Br. 1. Nevertheless, he points out that the
fee request in this case represents an hourly rate of $194.131, id. at 3, and suggests that “[r]ather
than award a net fee under § 406(b), the Court should award Plaintiff’s counsel $15,421.50, and .
. . order Plaintiff’s counsel to refund . . . [the prior EAJA award] to Plaintiff,”2 id. at 5.
“Sections 406(a) and 406(b) of the Social Security Act provide for the discretionary award
of attorney's fees out of the past-due benefits recovered by a successful claimant in a Social
Security action.” Murkeldove v. Astrue, 635 F.3d 784, 787 (5th Cir. 2011). While § 406(a)
governs the award of attorney fees for representing a claimant in administrative proceedings, §
406(b) governs the award of attorney fees for representing a claimant in court. Gisbrecht v.
Barnhart, 535 U.S. 789, 794 (2002). Pursuant to 42 U.S.C. § 406(b)(1)(A), when a court “renders
a judgment favorable to a claimant . . . who was represented before the court by an attorney,” the
The Court’s calculation of the effective hourly rate for work performed in federal court is $393.22 ($9,421.50 / 23.96
An attorney may obtain fees under both § 406(b) and the EAJA but must refund the lesser fee to the claimant.
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). However, in a case like this, where the claimant states he has agreed
to accept a credit for the prior smaller EAJA award and there is no prejudice to the claimant or Defendant, Plaintiff’s
counsel will not be required to refund the prior EAJA award. Cf. Pettit v. Berryhill, Cause No. 3:19cv202-JMV (N.D.
Miss. February 12, 2021).
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court may award “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.” “[T]he
25% cap applies only to fees for representation before the court, not the agency.” Culbertson v.
Berryhill, 139 S. Ct. 517, 522, 202 L. Ed. 2d 469 (2019).
Fees under § 406(b) satisfy a client's obligation to her counsel and, accordingly, are paid
out of the plaintiff's social security benefits. See Orner v. Shalala, 30 F.3d 1307, 1309 (10th Cir.
1994). Section 406(b), however, “does not displace contingent-fee agreements as the primary
means by which fees are set for successfully representing Social Security benefits claimants in
court.” Gisbrecht, 535 U.S. at 806-807. Nevertheless, agreements that provide for fees exceeding
25 percent of past-due benefits are unenforceable. Id. But even when contingency fee agreements
are within the statutory ceiling, “§ 406(b) calls for court review of such arrangements as an
independent check, to assure that they yield reasonable results in particular cases.” Id. at 807.
Here, Plaintiff essentially requests approval of a total award of $9,421.50 from monies
withheld by the Agency from his past-due benefits.3 Several factors weigh in favor of a
finding that the fee request is reasonable in this case.4 First, Plaintiff states a contract with his
attorney provides the attorney has the right to request an award of 25% of his past-due benefits
for representing him in federal. Second, counsel for Plaintiff is an experienced Social Security
The Agency withheld a total of $15,421.50 from Plaintiff’s past-due benefits for payment of attorney fees.
The Fifth Circuit has not prescribed an exhaustive list of factors to consider in determining whether a fee award
constitutes a “windfall” to the attorney. Jeter v. Astrue, 622 F.3d 371, 381 (5th Cir. 2010). It has noted with approval
several factors considered by lower courts, including “risk of loss in the representation, experience of the attorney,
percentage of the past-due benefits the fee constitutes, value of the case to a claimant, degree of difficulty, and whether
the client consents to the requested fee.” Id. at 382 (citing Brannen v. Barnhart, No. l:99-CV-325, 2004 WL 1737443,
at *5 (E.D. Tex. July 22, 2004)).
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attorney, achieved a fully favorable result for the client before this Court and before the
Agency, and has not been responsible for any delay in this matter. Third, the Fifth Circuit
Court of Appeals and district courts in this circuit have acknowledged the contingent nature or
high risk of loss inherent in Social Security appeals.5 Finally, the actual fee requested,
$9,421.50, amounts to only slightly over 15% percent of the claimant’s past-due benefits and,
consequently, does not offend § 406(b)(1)(A)’s ceiling on fees.
Therefore, it is ORDERED that Plaintiff’s petition for an award of attorney fees is
granted, and payment to counsel for Plaintiff from Plaintiff’s past-due benefits in the
amount of $4,651.55 is approved. It is further ORDERED that counsel for Plaintiff is not
required to refund Plaintiff the prior EAJA award, $4,769.95.
SO ORDERED this 18th day of February, 2021.
/s/ Jane M. Virden
U.S. MAGISTRATE JUDGE
See Jeter v. Astrue, 622 F.3d 371, 379 & n.9 (5th Cir. 2010).
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