The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DARLENE BROWN,
Plaintiff,
v. CASE NO. 3:21-cv-1221-MMH-MCR
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
____________________________________/
REPORT AND RECOMMENDATION1
THIS CAUSE is before the Court on the Uncontested Motion & Brief
for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”) (Doc. 22).
Plaintiff’s counsel, Bill Berke, Esq., makes a timely request for an award of
attorney’s fees pursuant to Section 206(b) of the Social Security Act, 42
U.S.C. § 406(b), in the net amount of $20,084.89. (Id.) For the reasons stated
herein, the undersigned respectfully RECOMMENDS that the Motion be
GRANTED.
1 “Within 14 days after being served with a copy of [this Report and
Recommendation], a party may serve and file specific written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party may
respond to another party’s objections within 14 days after being served with a copy.”
Id. A party’s failure to serve and file specific objections to the proposed findings and
recommendations alters the scope of review by the District Judge and the United
States Court of Appeals for the Eleventh Circuit, including waiver of the right to
challenge anything to which no specific objection was made. See Fed. R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1.
I. Background
On December 14, 2021, Plaintiff filed a Complaint in this Court,
appealing the Commissioner’s denial of his application for a period of
disability and disability insurance benefits (“DIB”). (Doc. 1.) On February
23, 2023, the Court reversed the Commissioner’s decision and remanded the
case to the ALJ for further proceedings pursuant to sentence four of 42 U.S.C.
§ 405(g). (Doc. 16.) On May 26, 2023, the Court granted Plaintiff’s Motion
for an Award of Attorney’s Fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), and awarded Plaintiff’s counsel $7,322.03 for
attorney’s fees. (Doc. 21.)
On remand, the Commissioner issued a favorable decision, finding
Plaintiff entitled to disability benefits, and withheld $27,406.92, or 25% of
Plaintiff’s past-due benefits of $109,627.70, for the possible payment of
attorney’s fees pursuant to 42 U.S.C. § 406(b). (Doc. 22 at 1.) Plaintiff’s
counsel now seeks an award of attorney’s fees pursuant to the contingent fee
contract2 with Plaintiff in the net amount of $20,084.89 ($27,406.92, which is
25 percent of Plaintiff’s past-due benefits, less $7,322.03, which is the
previously awarded EAJA fee). (Id. at 2.)
2 The contract, which is attached to the Motion, provides that the claimant agrees to
pay a fee of 25 percent of the total amount of past-due benefits to which he is
entitled. (Doc. 22-2.)
II. Standard
Under 42 U.S.C. § 406(b), attorneys who secure a favorable result for
their clients upon remand from federal court may petition the Court for a fee
“not in excess of 25 percent of the total of the past-due benefits to which the
claimant is entitled.” 42 U.S.C. § 406(b)(1)(A). In capping the fee at 25
percent, “Congress . . . sought to protect claimants against ‘inordinately large
fees’ and also to ensure that attorneys representing successful claimants
would not risk ‘nonpayment of [appropriate] fees.’” Gisbrecht v. Barnhart,
535 U.S. 789, 805 (2002).
In Gisbrecht, the Supreme Court stated:
[Section] 406(b) does not displace contingent-fee agreements as the
primary means by which fees are set for successfully representing
Social Security benefits claimants in court. Rather, § 406(b) calls
for court review of such arrangements as an independent check, to
assure that they yield reasonable results in particular cases. . . .
Within the 25 percent boundary, . . . the attorney for the successful
claimant must show that the fee sought is reasonable for the
services rendered.
Id. at 807.
The first place that the Court should turn to in assessing the
reasonableness of a fee is the parties’ fee agreement. Id. at 808. In
conducting its independent check to ensure that a fee is reasonable, the Court
may appropriately reduce the fee for a number of reasons, including “the
character of the representation and the results the representative achieved,”
any delay caused by counsel “so that the attorney will not profit from the
accumulation of benefits during the pendency of the case in court,” and/or
benefits that “are large in comparison to the amount of time counsel spent on
the case.” Id.
In this regard, the court may require the claimant’s attorney to
submit, not as a basis for satellite litigation, but as an aid to the
court’s assessment of the reasonableness of the fee yielded by the
fee agreement, a record of the hours spent representing the
claimant and a statement of the lawyer’s normal hourly billing
charge for noncontingent-fee cases.
Id.
III. Analysis
The contingency fee contract in this case provides that Plaintiff agreed
to pay his counsel 25 percent of his past-due benefits. (Doc. 22-2.) Plaintiff’s
counsel’s request for an award of $27,406.92, less the EAJA fee of $7,322.03,
is within the statutory maximum. Therefore, the contract is presumptively
reasonable.
Moreover, there is no reason to reduce the amount of the requested fee.
First, with respect to the character of the representation and the results
achieved, the Court notes that Plaintiff’s counsel provided professional and
skilled representation, resulting in a significant award of past-due benefits,
ongoing disability benefits, and Medicare. The Court also finds that counsel
promptly prosecuted this case.
Further, the Court does not find the requested fee to be
disproportionately large in relation to the total amount of time spent on this
case (35 hours, resulting in an hourly rate of $217.87).3 See, e.g., White v.
Comm’r of Soc. Sec., No. 6:09-cv-1208-JA-GJK, 2012 WL 1900562, *6 (M.D.
Fla. May 2, 2012) (report and recommendation adopted by 2012 WL 1890558
(M.D. Fla. May 24, 2012)) (approving a contingency fee, which amounted to
$1,491 per hour, as reasonable under § 406(b)); Foster v. Astrue, No. 3:08-cv-
960-HWM-JRK (Doc. 46) (M.D. Fla. Jan. 4, 2012) (adopting a magistrate
judge’s report and recommendation and approving a contingency fee, which
amounted to $1,025.28 per hour, as reasonable under § 406(b)); Howell v.
Astrue, No. 3:06-cv-438-MCR (M.D. Fla. Jan. 5, 2009) (finding an hourly rate
of $625 reasonable based on a 2.5 multiplier); McKee v. Comm’r of Soc. Sec.,
No. 6:07-cv-1554-KRS, 2008 WL 4456453, *6-7 (M.D. Fla. Sept. 30, 2008)
(approving a contingency fee, which amounted to $1,100 per hour, as
reasonable under § 406(b)); Watterson v. Astrue, No. 3:06-cv-369-HTS, 2008
WL 783634, *1-2 (M.D. Fla. Mar. 21, 2008) (finding a contingency fee, which
amounted to $1,089.66 per hour, to be reasonable under § 406(b)); Vilkas v.
Comm’r of Soc. Sec., No. 2:03-cv-687-JES-DNF, 2007 WL 1498115, *2 (M.D.
Fla. May 14, 2007) (finding a contingency fee, which amounted to $1,121.86
3 Although Plaintiff’s counsel spent 38.5 hours on this case, he seeks to recover fees
for only 35 hours. (Doc. 22-3 at 6.)
per hour, to be reasonable under § 406(b)); Bergen v. Barnhart, No. 6:02-ev-
458-ACC-KRS (Docs. 26, 36) (M.D. Fla. Sept. 21, 2006) (approving a
contingency fee translating to an award of $1,116.11 per hour under §
A06(b)).
There are no other potential reasons to reduce the fee. Therefore,
because the undersigned finds the contingency fee contract reasonable and
because there is no reason to reduce the amount of the requested fee,
Plaintiffs counsel should be awarded the requested fee.
Accordingly, it is respectfully RECOMMENDED that:
1. The Motion (Doc. 22) be GRANTED.
2. The Commissioner be directed to pay to Plaintiff's counsel the net
amount of $20,084.89 for § 406(b) fees out of Plaintiff's past-due benefits.
3. The Clerk of Court be directed to enter judgment accordingly.
DONE AND ENTERED at Jacksonville, Florida, on October 1, 2024.
: MONTE C. RICHARDSON
UNITED STATES MAGISTRATE JUDGE
Copies to:
The Hon. Marcia Morales Howard
United States District Judge
Counsel of Record