United States District Court, D. South Carolina, Greenville Division
Jason B. Brewer, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Bryan Harwell United States District Judge.
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
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) past-due 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. at 808).
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.
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 claimants.
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”).
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
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.
IS SO ORDERED.
“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 ...