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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JUDY BAGGETT,

Plaintiff,

vs. Case No.: 3:10cv447/MCR/EMT

CAROLYN W. COLVIN,

Acting Commissioner of Social Security,

Defendant.

_______________________________/

REPORT AND RECOMMENDATION

This cause is before the court upon Plaintiff’s “Unopposed Motion for Attorney Fees under

the Social Security Act, 42 U.S.C. [§] 406(b)” (doc. 24) and Defendant’s response thereto (doc. 26).

I. BACKGROUND 

In 2006, Plaintiff initiated a related action in this court seeking judicial review of the

Commissioner’s final decision denying her claim for disability benefits. The Commissioner filed a

Motion to Remand pursuant to sentence four of 42 U.S.C. § 405(g), which motion was granted and the

case was remanded for further administrative proceedings. Plaintiff’s counsel then filed a motion for

attorney’s fees under the Equal Access to Justice Act (“EAJA”), which motion was granted, and

counsel was awarded $1,500.00 in EAJA fees. See Baggett v. Astrue, No. 3:06cv271/LAC/EMT

(N.D. Fla.).

Further administrative proceedings were conducted following the remand in Case No.

3:06cv271, and after conducting such proceedings the Commissioner again denied Plaintiff’s claim

for benefits. Thus, on November 2, 2010, Plaintiff initiated the instant action by filing a complaint for

judicial review of the Commissioner’s (second) final decision denying her claim for disability

benefits (doc. 1). On April 21, 2011, the Commissioner again filed a Motion to Remand pursuant to

sentence four of § 405(g) (doc. 16). The Commissioner stated that remand was appropriate to enable

an Administrative Law Judge to “obtain [a] missing exhibit” and “offer Plaintiff a supplemental

hearing, take any further action necessary to complete the administrative record, and issue a new

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decision” (doc. 16-1 at 1).1 On May 3, 2011, the undersigned issued a Report and Recommendation,

recommending that the Commissioner’s motion be granted, the decision of the Commissioner denying

benefits be reversed, and the case be remanded to the Commissioner for further administrative

proceedings (doc. 17). On June 6, 2011, the district court entered an order adopting in full the Report

and Recommendation (doc. 18). On July 6, 2011, Plaintiff’s counsel filed a motion for attorney’s fees

under the EAJA, which motion was granted, and Plaintiff was awarded EAJA fees in the amount of

$1,288.60 (see docs. 20, 22, 23).2

In the instant motion for attorney’s fees pursuant to 42 U.S.C. § 406(b), Plaintiff’s counsel

states that following remand of the instant case, and pursuant to the district court’s order, additional

administrative proceedings were conducted, which ultimately resulted in a decision fully favorable

to Plaintiff (see doc. 24 & Exs.). More specifically, counsel notes that in a “Notice of Award” dated

February 10, 2014, Plaintiff was informed that she is entitled to disability insurance benefits (“DIB”)

commencing in April 2001 (doc. 24-1 at 2). The notice further indicates that $10,054.50 is being

withheld from Plaintiff’s DIB award by the Commissioner’s Office of Central Operations, in

anticipation of direct payment of an authorized attorney’s fee (doc. 24 at 2 & n.2; doc. 24-1 at 3). 

Counsel explains that although the Notice of Award does not actually state the total amount of

Plaintiff’s past due DIB benefits, it indicates that the amount withheld (i.e., $10,054.50) is 25% of her

past due benefits; therefore, the total amount of her past due DIB benefits must be $40,218.00 (doc.

24 at 2 n.2).3

 Additionally, Plaintiff was awarded $30,964.23 in past due Supplemental Security

Income benefits (“SSI”), and the Commissioner withheld 25% of that award, or $7,741.06 (doc. 24-1

at 1). Thus, counsel seeks an award of fees under § 406(b) in the total amount of $17,795.55, which

1

The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

2

The first EAJA award was awarded to Plaintiff’s counsel. The second EAJA award was awarded directly to

Plaintiff, in light of the decisions issued in Astrue v. Ratliff, 130 S. Ct. 2521 (2010) and Reeves v. Astrue, 526 F.3d

732 (11th Cir. 2008), both of which issued after the first EAJA award was made to Plaintiff’s counsel in 2007. 

Additionally, with regard to the second EAJA award, Plaintiff’s counsel specifically noted that the award would be

“fully paid” to Plaintiff (see doc. 20 at 2). 

3

 Counsel is correct in noting that 25% of $40,218.00 is $10,054.50.

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is 25% of Plaintiff’s combined award of past due DIB and SSI benefits (see doc. 24 at 3).4 In

requesting this award, counsel notes that he provided approximately 19.2 hours of attorney services

in representing Plaintiff in this court in her—ultimately successful—claims for benefits (id.; see also

doc. 24-4).

Continuing, Plaintiff’s counsel notes that this court “has awarded Plaintiff a total of $2,788.60”

in attorney’s fees under the EAJA (i.e., $1,500 in Case No. 3:06cv271, and $1,288.60 in the instant

case), and he notes that when an attorney is awarded fees under the EAJA and § 406(b) the attorney

must refund the smaller of the two fees to the claimant (doc. 24 at 2–3). He further states if he is

awarded the fees he seeks here under § 406(b), he will refund to Plaintiff the previously awarded

EAJA fees (i.e., $2,788.60) (doc. 24 at 9).

II. ANALYSIS

Attorneys handling Social Security proceedings may seek fees for their work under two

different statutory provisions, the EAJA and 42 U.S.C. § 406. The EAJA allows for an award of

attorney fees against the United States when the party seeking fees is the prevailing party in a civil

action brought against the United States. 28 U.S.C. § 2412. Fees under the EAJA penalize the

Commissioner for assuming an unjustified legal position and are paid out of Social Security

Administration funds. McGraw v. Barnhart, 450 F.3d 493, 497 (10thCir. 2006). 

Title 42 U.S.C. § 406 allows for recovery of attorney’s fees for representation of individuals

claiming Social Security benefits, both at the administrative level and in court. “The statute deals with

the administrative and judicial review stages discretely: § 406(a) governs fees for representation in

administrative proceedings; § 406(b) controls fees for representation in court.” Gisbrecht v. Barnhart,

535 U.S. 789, 794, 122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002). For representation of a benefits

claimant at the administrative level, an attorney may file a fee agreement with the agency in advance

of a ruling on the claim for benefits. Section 406(a). If the ruling on the benefits claim is favorable

to the claimant, the agency will generally approve the fee agreement subject to a limitation that the fees

may not exceed the lesser of 25% of past due benefits or $5,300.00. Gisbrecht, 535 U.S. at 795. For

proceedings in court, when a judgment favorable to the benefits claimant is rendered, the court “may

determine and allow as part of its judgment a reasonable fee for such representation, not in excess of

4

The DIB award ($40,218) plus the SSI award ($30,964.23) equals $71,182.23, and 25% of $71,182.23 is

$17,795.56 (counsel requests one cent less).

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25 percent of the total of past due benefits to which the claimant is entitled by reason of such

judgment.” Section 406(b)(1)(A). The fee is payable “out of, and not in addition to, the amount of

[the] past due benefits.” Id. Finally, although fees can be awarded under both the EAJA and § 406(b),

Congress has precluded receipt of attorney fees for the same services provided under the EAJA and

the Social Security Act. See § 406(b)(1)(A); see also Jackson v. Comm’r of Soc. Sec., 601 F.3d

1268, 1271 (11th Cir. 2010) (“Under 42 U.S.C. § 406(b)(2), it is a criminal offense for an attorney

to collect fees in excess of those allowed by the court.”).

In Gisbrecht, the Supreme Court held that the provision of § 406(b) that limits attorney fees

to 25% of past due benefits was designed to control, and not to displace, contingency fee agreements

that are within the statutory ceiling. Gisbrecht, 535 U.S. at 808–09. The Court concluded that

§ 406(b) “calls for court review of such arrangements as an independent check, to assure that they

yield reasonable results in particular cases.” Id. at 807. Accordingly, within the “25 percent

boundary” permitted by § 406(b), the “attorney for the successful claimant must show that the fee

sought is reasonable for the services rendered.” Id. The Gisbrecht Court did not specifically define

the factors that lower courts should consider when determining the reasonableness of a § 406(b) fee. 

It did, however, note with approval the approach of courts that have reduced an attorney’s recovery

based on the character of the attorney’s representation and the results the representation achieved. Id.

at 808 (citing McGuire v. Sullivan, 873 F.2d 974, 983 (7thCir. 1989)). For example, if an attorney

is responsible for delay, a reduction may be in order to prevent the attorney from profiting from the

accumulation of benefits during the case’s pendency. Id. (citing Rodriguez v. Brown, 865 F.2d 739,

746 (6thCir. 1989)). In addition, “[i]f the benefits are large in comparison to the amount of time

counsel spent on the case, a downward adjustment is similarly in order.” Id. (citing Rodriguez and

Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)). 

Cases decided since Gisbrecht have generally been deferential to the terms of contingent fee

contracts, accepting de facto hourly rates that exceed those for non-contingent fee cases. See, e.g.,

Joslyn v. Barnhart, 389 F. Supp. 2d 454 (W.D.N.Y. 2005) (awarding de facto hourly rate of $891);

McPeak v. Barnhart, 388 F. Supp. 2d 742 (S.D.W. Va. 2005) (approving $681); Hearn v. Barnhart,

262 F. Supp. 2d 1033 (N.D. Cal. 2003) (approving $450); Boyd v. Barnhart, 2002 U.S. Dist. LEXIS

26690 (E.D.N.Y. 2002) (approving $455); Dodson v. Barnhart, 2002 U.S. Dist. LEXIS 27408 (W.D.

Va. 2002) (approving $694); Coppett v. Barnhart, 242 F. Supp. 2d 1380 (S.D. Ga. 2002) (approving

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$350). Additionally, the undersigned notes that cases in this district have resulted in similar awards. 

See, e.g., Lambert v. Barnhart, Case No. 3:03cv302/RV/MD (approving $982 on September 5, 2006

(docs. 26, 27)); White v. Barnhart, Case No. 3:02cv78/LAC/MD (approving $741.81 on February

9, 2005 (docs. 32, 33)). Moreover, in another case in this district, the court reduced a requested fee,

but still awarded a fee based on an effective hourly rate of $1,250.00, in a case in which plaintiff

prevailed in this court, but on a issue identified by the magistrate judge, not by counsel. Lindsey v.

Barnhart, Case No. 3:99cv475/RV/MCR (N.D. Fla. 2003).

In the instant case, Plaintiff’s counsel states that the amount he seeks does not exceed the

maximum recovery permitted under the terms of § 406(b) and is consistent with the terms of the fee

agreement he entered into with Plaintiff. Moreover, counsel asserts, the amount he seeks to recover

is reasonable, even though it results in a de facto hourly rate of approximately $782.00 ($17,795.55 -

$2,788.60 (total EAJA award) = $15,006.95; $15,006.95/19.2 (hours) = $781.61) (see doc. 24 at 8). 

In support of his assertion, counsel notes that he spent nearly twenty hours litigating Plaintiff’s case

in this court over a period of five years, that Plaintiff’s case involved a relatively long procedural

history, and that his efforts ultimately resulted in a favorable result for Plaintiff and a sizable award

(see generally doc. 24). Finally, counsel notes that he did not needlessly delay the proceedings in this

case and that the Commissioner does not contest the amount he seeks (id.; see also doc. 26

(Commissioner’s response to Plaintiff’s motion, indicating no objection)). Finally, as previously

noted, counsel states he will refund the EAJA award to Plaintiff and thus requests the maximum award

under § 406(b) (i.e., 25% of Plaintiff’s past due benefits). 

III. CONCLUSION

The undersigned, after conducting an independent determination (see Gisbrecht, 535 U.S. at

807), agrees with Plaintiff’s counsel and finds that the fee he seeks under Section 406(b) is reasonable

(a finding that is bolstered by the Commissioner’s lack of objection to the amount requested (see doc.

26)). The fee requested by Plaintiff’s counsel is indeed the fee contemplated in the fee agreement he

made with Plaintiff and, while high, is in line with other reported post-Gisbrecht decisions. 

Moreover, there is no dispute as to whether the amount requested is within the statutory and contractbased maximum of 25% of past due benefits. Furthermore, there is no allegation of undue delay by

Plaintiff’s counsel, and he has represented Plaintiff for some time, during which he assumed a risk that

he would recover no fee for his services. Additionally, the court cannot fault the character of the

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representation provided by counsel in this case, which ultimately led to a favorable disability

determination by the Commissioner and resulted in a sizable benefits award to Plaintiff. In short, the

court is persuaded that Plaintiff’s counsel has met his burden of showing that his request for

$17,795.55 in attorney’s fees is reasonable. Therefore, counsel should be awarded this amount

pursuant to Section 406(b), and the previously awarded EAJA fees should be refunded to Plaintiff.5

Cf. Jackson, 601 F.3d at 1271–72 (finding error in district court’s conclusion that the EAJA’s Savings

Provision required it to award counsel the full 25% of Jackson’s past-due benefits and required it to

order counsel to refund the EAJA fee to Jackson, noting that the “court could have simply awarded

[counsel] the difference between 25% of Mr. Jackson’s past-due benefits and the amount of the EAJA

fee,” as counsel had requested). 

Accordingly, it is respectfully RECOMMENDED:

1. That the “Unopposed Motion for Attorney Fees under the Social Security Act, 42

U.S.C. [§] 406(b)” (doc. 24) be GRANTED.

2. That Plaintiff’s counsel, John M. Pennington, be awarded attorney’s fees in the amount

of $17,795.55, to be paid out of the sums withheld by the Commissioner from Plaintiff’s past due

benefits. 

3. That upon receipt of attorney’s fees pursuant to 42 U.S.C. § 406(b), Plaintiff’s counsel,

John M. Pennington, shall immediately refund to Plaintiff any or all of the previously awarded EAJA

fees that have not already been refunded to Plaintiff.

5

As noted supra, the first EAJA award in the amount of $1,500 was awarded directly to Plaintiff’s counsel.

The second EAJA award in the amount of $1,288,60 was awarded directly to Plaintiff, and counsel indicated that

Plaintiff would indeed receive that amount in full. In the instant motion, however, counsel states he will “refund to

Plaintiff the EAJA fee previously paid to Plaintiff’s counsel in the amount of $2,788.20” (doc. 24 at 9). It is thus

unclear whether any of the total EAJA award has previously been refunded to Plaintiff. To the extent none has been

refunded, counsel must refund to Plaintiff the total EAJA award upon receipt of the § 406(b) award. To the extent a

portion of the total EAJA amount has previously been refunded to Plaintiff, counsel must refund to Plaintiff the

balance of the total EAJA award upon his receipt of the § 406(b) award. This directive is consistent with counsel’s

choice to refund the EAJA award to Plaintiff rather than deduct the amount of the EAJA award from his instant § 406(b)

fee request. See Jackson, 601 F.3d at 1274 (“Although an attorney who receives fees under both the EAJA and 42

U.S.C. § 406(b) must refund the smaller fee to his client, the 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.”).

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At Pensacola, Florida, this 25th day of March 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon all other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

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