United States District Court, S.D. Alabama, Southern Division
MICHAEL A. ROBERTS, Plaintiff,
NANCY C. BERRYHILL, Acting Commissioner of Social Security, Defendant.
W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the Petition for Authorization
of Attorney Fees pursuant to 42 U.S.C. § 406(b) filed by
Byron A. Lassiter, counsel for Plaintiff Michael A. Roberts
(“Plaintiff”) (Doc. 29). The Defendant
Commissioner of Social Security (“the
Commissioner”) has filed a response to the motion (Doc.
30). Upon consideration, the Court finds that the §
406(b) motion is due to be
September 22, 2015, Plaintiff, at all times represented by
Mr. Lassiter, commenced this action for judicial review of an
unfavorable final decision of the Commissioner under 42
U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1). In
accordance with the Court's scheduling order (Doc. 5),
the Commissioner filed her answer (Doc. 12) to the complaint
and the record of the administrative proceedings (Doc. 13),
and the Plaintiff filed her brief identifying errors in the
Commissioner's final decision (Doc. 15). In response to
the Plaintiff's brief, the Commissioner filed her brief
in support of the Final Decision (Doc. 16). Oral argument was
waived (Docs. 18, 20) and on March 11, 2016, the undersigned
entered a Memorandum Opinion and Order reversing the
Commissioner's final decision, remanding this action to
the Social Security Administration for further administrative
proceedings (Doc. 22) and entering Judgment for the Plaintiff
subsequently filed a motion for attorney's fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d) (Doc. 24), for time spent before this
Court, which was granted on June 6, 2016, awarding the
Plaintiff $3, 163.44 in attorney's fees (Docs. 28, 29).
remand to the Social Security Administration (SSA), an
Administrative Law Judge (“ALJ”) issued a
favorable decision for the Plaintiff on October 28, 2016
(Doc. 29, Paragraph 5.). A Notice of Award of past-due
benefits was issued February 12, 2017, which also advised
that $9, 616.00, representing 25% of past due benefits, was
being withheld in order to pay an approved lawyer's fee
(Doc. 29-2). Mr. Lassiter has already been paid $6, 000 for
his services before the administration (Doc. 29-3) and he
filed the present § 406(b) motion on June 2, 2017,
requesting that the Court award him $3, 616.00, the balance
of the withheld fee (Doc. 29).
[U]nder 42 U.S.C. § 406(b), a court entering judgment in
favor of a Social Security benefits claimant who was
represented by an attorney “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). Assuming that the requested fee is within the
25 percent limit, the court must then determine whether
“the fee sought is reasonable for the services
rendered.” Gisbrecht v. Barnhart, 535 U.S.
789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). For
example, courts may reduce the requested fee if the
representation has been substandard, if the attorney has been
responsible for delay, or if the benefits are large in
comparison to the amount of time the attorney spent on the
case. Id. at 808, 122 S.Ct. at 1828. A § 406(b)
fee is paid by the claimant out of the past-due benefits
awarded. 42 U.S.C. § 406(b)(1)(A).
Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268,
1271 (11th Cir. 2010). “42 U.S.C. § 406(b) authorizes
an award of attorney's fees where[, as here, ] 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.”
Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273,
1277 (11th Cir. 2006) (per curiam).
R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's
fee claim.” Id. Rule 54(d)(2)(B)(i) provides
that, “[u]nless a statute or a court order provides
otherwise, [a] motion[ for attorney's fees] must be filed
no later than 14 days after the entry of judgment.” The
Notice of Award sent to Plaintiff is dated February 12, 2017
(Doc. 29-2) but it is unclear when Plaintiff received it. The
Notice stated that Plaintiff had 60 days from the day after
the notice was received to ask for an appeal and 5 additional
days was allowed for receipt of the notice. In ordering
remand, the Court did not set the time to file a §
406(b) motion (Doc. 22). Mr. Lasiter's 406(b) motion was
filed June 7, 2017, less than four months after the date of
the Notice of Award. Considering the history of this action
and the successful result obtained by Mr. Lassiter for his
client, the Motion is DEEMED timely filed.
In Gisbrecht v. Barnhart, the Supreme Court
considered 42 U.S.C. § 406(b) and clarified its impact
on the district court's role in awarding a reasonable fee
following a favorable claim for Social Security benefits.
See535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152
L.Ed.2d 996 (2002). Although § 406(b)(1)(A) gives
district courts the power to “determine and allow as
part of its judgment a reasonable fee” following a
favorable claim for Social Security benefits, 42 U.S.C.
§ 406(b)(1)(A), it does not empower them to ignore the
fee agreements entered into by parties when determining what
a reasonable fee would be, see Gisbrecht, 535 U.S.
at 807, 122 S.Ct. at 1828 (concluding that “ §
406(b) does not displace contingent-fee agreements as the
primary means by which fees are set”). Instead, courts
must look to the ...