BERT W. MILLING, Jr., Magistrate Judge.
This 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
On 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 (Doc. 23).
Plaintiff subsequently filed a motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)
Following 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).
Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).
"Fed. 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
Keller v. Comm'r of Soc. Sec., 759 F.3d 1282, 1284 (11th Cir. 2014).
Section 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 Lassiter to represent him, the Plaintiff entered into an "Attorney Fee Agreement" (Doc. 29-4), in which the Plaintiff agreed to pay an attorney fee not to exceed 25% of the combined gross retroactive benefits from the Social Security and Supplemental Security Income resulting from a favorable award. The Court finds no reason to believe that this fee agreement violates § 406(b)(1)(A). However,
Thomas v. Astrue, 359 F. App'x 968, 974-75 (11th Cir. 2010) (per curiam) (unpublished) (footnote omitted).
As provided in the Plaintiff's Notice of Award, the SSA calculated $9,616.00 as representing 25% of the Plaintiff's recovered benefits. Neither Mr. Lassiter nor the Commissioner disputes that figure here. Mr. Lassiter has already received from the SSA a $6,000.00 fee for his services in representing the Plaintiff there, See 42 U.S.C. § 402(a)(1) ("Except as provided in paragraph (2)(A), whenever the Commissioner of Social Security, in any claim before the Commissioner for benefits under this subchapter, makes a determination favorable to the claimant, the Commissioner shall, if the claimant was represented by an attorney in connection with such claim, fix (in accordance with the regulations prescribed pursuant to the preceding sentence) a reasonable fee to compensate such attorney for the services performed by him in connection with such claim.").
Moreover, "an attorney who receives fees under both the EAJA and 42 U.S.C. § 406(b) must refund the smaller fee to his client. . ." Jackson, 601 F.3d at 1274. "Although a refund paid by the claimant's attorney directly to the claimant would comply with the EAJA Savings Provision,. . .a refund is[ not] the only way to comply. . .[T]he attorney may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) fee request. . ." Id. at 1274. Mr. Lassiter is holding for Plaintiff in the firm's trust account the sum of $2,055.48 (the EAJA fee awarded in the amount of $3,163.44 minus $1,107.48 which applied to a U.S. Department of Education debt) which sum will be paid to Plaintiff. Thus, the Court's duty now is to determine whether it is reasonable for him to receive $3,616.00 (i.e., 9,616.00-$6,000.00) for his services to the Plaintiff in this Court under their contingency fee agreement.
Considering the amount of time Mr. Lassiter devoted to this case (16.8 hours) and the services performed (Doc. 29-1), the Court finds that the benefits awarded to the Plaintiff are not so "large in comparison to the amount of time counsel spent on the case" such that "a downward adjustment is. . .in order." Gisbrecht, 535 U.S. at 808. Mr. Lassiter obtained excellent results for his client through his efforts, and a review of the docket for this action does not indicate that he has been responsible for any significant delay. For instance, his social security brief was timely filed, he never requested a deadline extension, and he consented to the undersigned's jurisdiction, thus allowing the undersigned to rule on this action rather than having to issue a recommendation to the district judge. Having considered the guidance set forth in Gisbrecht, the undersigned finds that it is reasonable for Mr. Lassiter to be awarded a fee of $3,616.00 under § 406(b).
In accordance with the foregoing analysis, it is
Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).