United States District Court, S.D. Alabama, Northern Division
W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the Motion for Fees under 42
U.S.C. § 406(b) (Doc. 29) filed by William T. Coplin,
Jr., Esq., counsel for Plaintiff Dorothy Johnson
(“Plaintiff”). Defendant Acting 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 (Doc. 29) is due to
23, 2016, Plaintiff, at all times represented by Coplin,
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. 4), the
Commissioner filed her answer to the complaint (Doc. 13) and
the record of the administrative proceedings (Doc. 14), and
Plaintiff filed her brief identifying errors in the
Commissioner's final decision (Docs. 15, 16). In response
to Plaintiff's brief, the Commissioner filed her brief in
support of the final decision (Doc. 17). The undersigned, by
Memorandum Opinion and Order, reversed the decision of the
Commissioner and remanded this action for further proceedings
(Doc. 23) and Judgment was entered accordingly on November
18, 2016 (Doc. 24).
subsequently filed a motion for attorney's fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d) (Doc. 25), which the Court granted on
December 21, 2016, awarding Plaintiff $1, 934.76 in
attorney's fees (Docs. 27, 28). Following remand to the
Social Security Administration (SSA), an Administrative Law
Judge (“ALJ”) issued a favorable decision for the
Plaintiff on December 29, 2017. (Doc. 29-2). A notice of
award of past-due benefits was issued March 28, 2018, which
also advised that $11, 832.75, representing 25% of the total
past due benefits, was being withheld to pay an approved
representative's fee. (Doc. 29-3). Coplin filed the
present § 406(b) motion on April 16, 2018, requesting
that the Court award him a fee in the amount of $3, 897.99.
[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.”
Because Coplin's § 406(b) motion was filed within 14
days of the date of the Plaintiff's notice of award,
including mailing time, the motion is found to be timely.
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.
See 535 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 agreement made by the parties and
independently review whether the resulting fee is reasonable
under the circumstances. Id. Accordingly, [a court]
must look to the fee agreement made by [a claimant] and his
Keller v. Comm'r of Soc. Sec., 759 F.3d 1282,
1284 (11th Cir. 2014).
406(b)(1)(A) “prohibits fee agreements from providing
for a fee ‘in excess of 25 percent of the total of the
past-due benefits to which the claimant is entitled.'
” Id. at 1285 (quoting 42 U.S.C. §
406(b)(1)(A)). However “the agreement, not the statute,
provides the ‘primary means by which fees are set.'
” Id. (quoting Gisbrecht, 535 U.S. at
807). In retaining Coplin to represent him, Plaintiff entered