Massive Discount Angela M. V. Comm’r, Case No. 20-20804-civ-scola (406(b) Order March 8, 2024) - Today Only [e8zw7mSM]

Angela M. v. Comm’r, Case No. 20-20804-Civ-Scola (406(b) Order March 8, 2024) (Decision by U.S. District Judge Robert N. Scola, Jr.)

Briefs for purchase: 

• Joint Memorandum

• Order awarding 406(b) Fees 

Topic addressed:
• 406(b) fees - windfall

Rulings cited: none

Issue briefed:
Whether the award of fees of $49,642.86 under 42 U.S.C. § 406(b) in a contingency fee case where the attorneys spent a total of 18 hours, which was sought in an unopposed motion, constitutes a windfall.

Court decision:
After filing an unopposed motion for fees under 42 U.S.C. § 406(b), the court entered the following Order asking for further briefing:

PAPERLESS ORDER requiring additional briefing as to 28 the Petitioner’s (counsel for the Plaintiff) unopposed motion for $49,642.86 in fees under 42 U.S.C. 406(b). Although the Court recognizes that the Petitioner’s efforts have resulted in stellar results for her client, and that the amount she seeks in fees is less than 25% of the past-due Social Security insurance benefits, the Court must nonetheless still “determine whether the fee sought is reasonable for the services rendered.” Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010). Although the Petitioner points to her client’s excellent results, describes taking on substantial risk of loss in representing the Plaintiff, and attests to the parties’ valid contingency agreement, the Court requests further assurances that the extraordinary fee sought in this case is not unreasonable. Accordingly, the Court orders counsel, on or before February 9, 2024, to file (jointly with the Government), supplemental briefing including the following information: whether the award represents a windfall to counsel; whether counsel’s “success is attributable to [counsel’s] own work or instead to some unearned advantage”; counsel’s “degree of expertise and adequacy of representation”; the “overall complexity of the case”; and “the significance of the result achieved.” Gossett v. Soc. Sec. Admin., Comm’r, 812 F. App’x 847, 85051 (11th Cir. 2020) (cleaned up).

After the filing of a Joint Memorandum, the court entered an Order granting the Unopposed Motion for 406(b) fees. Slip op. at 1. In support, the court cited the “stellar results obtained for her client,” the court’s evaluation of the factors set forth in its Paperless Order, and the “particular circumstances of this case.” Id.

The court stressed that “importantly, neither the Commissioner nor [Plaintiff], oppose the motion” and the fact that “the Commissioner joined in counsel’s supplemental memorandum which clearly and thoughtfully justified the award.” Id. The court then explained that it was “undisputed that counsel’s success in this case is attributable to her own work and not to some unearned advantage,” explaining: 

In fact, as counsel points out, she was at a disadvantage in this case, facing a great risk of loss, considering she was not retained until after her client had already lost at all levels of administrative review and had been unsuccessfully seeking benefits for over five years, first applying for benefits in November 2014. (See Jt. Supp. at 7.)

Id. The court next stressed counsel’s lengthy experience of “over forty years of social-security disability representation” and the fact that “there is no dispute that counsel and [Plaintiff] entered into a valid contingency-fee agreement." Id. at 1-2.

Thus, “despite the apparent windfall to counsel, in the amount of $49,642.86, for the eighteen hours she spent working on this case,” the court nonetheless found that the award was reasonable “in light of its consideration of the record and its evaluation of the relevant factors.” Id. at 2 (citing Gossett, 812 F. App’x at 850 (noting that whether an award represents a windfall cannot be considered in isolation from all the other relevant factors and circumstances of a case)); Rodriguez v. Colvin, 318 F. Supp. 3d 653, 658 (S.D.N.Y. 2018) (“[A] reduction in the agreed upon contingency amount should not be made lightly, particularly given the importance of encouraging attorneys to accept social security cases on a contingency basis.”) (cleaned up); Daniel E. W. v. Berryhill, 5:17-CV-0271 (DEP), 2019 WL 1986538, at *5 (N.D.N.Y. May 6, 2019) (“Allowing for such arrangements that . . . result in recovery of fees at effective rates higher than ordinarily sanctioned in fee-shifting cases, serves an important purpose of encouraging lawyers to agree to represent Social Security claimants, many of whom are of limited resources.”).