Brewer v. Commissioner Social Security Administration
ORDER granting 25 Motion for Attorney Fees per Rule 406b Signed by Honorable R Bryan Harwell on 12/6/2017.(abuc)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Jason B. Brewer,
Nancy A. Berryhill, Acting
Commissioner of Social Security,
Civil Action No.: 6:14-cv-03980-RBH
This matter is before the Court on Plaintiff’s motion [ECF No. 25] for attorney fees under 42
U.S.C. § 406(b)(1). Plaintiff’s counsel requests an attorney fee award of $26,911.75, which
represents 25% of the past due benefits of $107,647.00 for Plaintiff and his dependents. Plaintiff’s
counsel previously received an attorney fee award under the Equal Access to Justice Act (“EAJA”),
42 U.S.C. § 2412, in the amount of $3,861.06. Plaintiff’s counsel agrees that any attorney fees
awarded under § 406(b)(1) are subject to offset by a previous EAJA attorney fee award and the
lesser of the two amounts must be refunded to the plaintiff. On November 30, 2017, Defendant
filed a response in support of Plaintiff’s motion.
Title 42 U.S.C. § 406(b)(1)(A) provides that “[w]henever 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)(1)(A). In Gisbrecht v. Barnhart, the Supreme Court held that §
406(b) sets a statutory ceiling for attorney fees in social security cases of 25 percent of past-due
benefits and calls for court review of contingency fee agreements to assure that the agreement yields
reasonable results in particular cases. 535 U.S. 789, 807 (2002). Contingency fee agreements are
unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.
Gisbrecht, 535 U.S. at 807. When the contingency fee agreement and requested fee do not exceed
25 percent of the past-due benefits, “the attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.” Id. Even where the requested fee does not exceed
25 percent of past-due benefits, “a reduction in the contingent fee may be appropriate when (1) the
fee is out of line with the ‘character of the representation and the results ...achieved,’ (2) counsel’s
delay caused past-due benefits to accumulate ‘during the pendency of the case in court,’ or (3) pastdue benefits ‘are large in comparison to the amount of time counsel spent on the case’” (i.e., the
“windfall” factor). Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005) (citing Gisbrecht, 535 U.S.
In considering whether plaintiff’s counsel would receive a “windfall” from the contingency
fee agreement, the Court is mindful of the fact that “contingency fees provide access to counsel for
individuals who would otherwise have difficulty obtaining representation.” In re Abrams & Abrams,
P.A., 605 F.3d 238, 245 (4th Cir. 2010). As the district court noted in Wilson v. Astrue,
there are occasions in the practice of representing claimants where
a 25 percent contingent fee agreement is reached between the
claimant and counsel, but no fee is awarded because of the result
achieved in the case. Thus, adherence to the 25 percent contingent
fee allowed by statute in a successful case such as this one
recognizes the realities facing practitioners representing social
security claimants and sustains those practitioners so as to allow
them to continue to make their services available to other
622 F. Supp. 2d 132, 136-37 (D.Del. 2008); see also Gisbrecht, 535 U.S. at 804 (recognizing that
“the marketplace for Social Security representation operates largely on a contingency fee basis”).
In this case, Plaintiff and Plaintiff’s counsel entered into a contingency fee agreement dated
October 13, 2014, which provided that if Plaintiff or his family received any back benefits after
remand or reversal from the federal court, then Plaintiff agreed to pay Plaintiff’s counsel 25% of
past-due benefits due to Plaintiff and his family. [ECF No. 25-2]. There is no indication that
counsel caused any unusual delays in the case. According to the Notices of Award, Social Security
withheld a total of $26,911.75 of past due benefits due to Plaintiff and his dependents to pay his
attorney’s fee. [ECF No. 35-3]. The Court concludes that Plaintiff’s counsel provided thorough and
adequate representation of Plaintiff. Plaintiff’s counsel’s fee request is reasonable and not in excess
of 25% of Plaintiff’s past due benefits.
For the foregoing reasons, the Court GRANTS Plaintiff’s motion [ECF No. 25] for attorney
fees under 42 U.S.C. § 406(b)(1) in the amount of $26,911.75. Plaintiff’s counsel must refund the
EAJA fee award of $3,861.06 to the Plaintiff.1
IT IS SO ORDERED.
December 6, 2017
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
“Fee awards may be made under both [EAJA and § 406(b)], but the claimant's attorney must
refund to the claimant the amount of the smaller fee . . . up to the point the claimant receives 100 percent of
the past-due benefits.” Gisbrecht, 535 U.S. at 796 (internal quotation marks and citation omitted).
Accordingly, Plaintiff's counsel is to refund to the Plaintiff the previously ordered EAJA fees immediately
after receipt of the § 406(b) fees.
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