IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL S. JACKSON, :

Plaintiff, :

vs. : CA 08-0254-CG-C

MICHAEL J. ASTRUE, :

Commissioner of Social Security,

:

Defendant.

REPORT AND RECOMMENDATION

This cause is before the Court, pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule

54(d)(2)(D) of the Federal Rules of Civil Procedure, on the petition for authorization of

attorney’s fees under the Social Security Act, 42 U.S.C. § 406(b). (Doc. 31) Upon

consideration of all pertinent materials contained in the file, it is determined that petitioner

should receive a reasonable fee in the amount of $12,929.48 under the Social Security Act.

FINDINGS OF FACT

1. Byron A. Lassiter, Esquire, was hired by plaintiff to represent him in

connection with his claim for a period of disability and disability insurance benefits on

February 10, 2005. (See Doc. 31, ¶ 1) Four days prior to the filing of the complaint in this

case (Doc. 1 (complaint filed on May 13, 2008)), that is, on May 9, 2008, Jackson executed

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 1 of 8
2

a fee agreement wherein he agreed to the payment of an attorney’s fee equaling twenty-five

percent (25%) of all past-due benefits following a favorable decision. (Doc. 31, Exhibit B,

at ¶¶ 2 & 3 (“It is understood and agreed that the attorney’s fee will be 25% of the combined

gross retroactive benefits from Social Security and Supplemental Security Income (SSI)

resulting from a favorable award of the Commissioner, prior to any reduction under Section

1127(a) of the Act. It is understood that Social Security past due benefits represent the total

amount of money to which I and any auxiliary beneficiary or beneficiaries become entitled

through the month before the month SSA effectuates a favorable administrative

determination or decision on my Social Security claim and that SSI past-due benefits are the

total amount of money from which I become eligible through the month SSA effectuates a

favorable administrative determination or decision on my SSI claim.”))

2. Following remand proceedings in this case (see Doc. 24 (judgment of

remand)), the Commissioner determined that plaintiff was disabled and entitled to benefits

commencing March 1, 2004. (See Doc. 31, ¶ 7).

3. The Social Security Administration has verbally informed petitioner that “the

amount of $12,929.48 is currently being withheld for payment of authorized attorney fees.”

(Doc. 31, at ¶ 9) Because the Administration typically withholds 25% of past due benefits

awarded a claimant for payment of attorney’s fees, petitioner has extrapolated from the

foregoing oral information that plaintiff was awarded past-due disability insurance benefits

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 2 of 8
3

totaling $51,717.92. (See id.) While there is no information provided that the Social Security

Administration has awarded petitioner fees for services rendered before the Administration

with respect to the amount it withheld ($12,929.48) from past-due benefits referenced earlier

(see id. at ¶¶ 9-10), the Administration has approved a fee for petitioner with respect to a

subsequent application filed on Jackson’s behalf on or about April 2, 2008 (see Doc. 31, at

2 n.1).

4. Petitioner has submitted to this Court an itemized statement regarding the time

spent before this Court pursuing Jackson’s claim. The total time delineated therein is 21.2

hours. (Doc. 31, Exhibit A) 

5. Petitioner requests that this Court approve an attorney’s fee in the amount of

$12,929.48 under the Social Security Act, same representing the total of past-due benefits

presently withheld by the Social Security Administration for payment of attorney’s fees (see

Doc. 31, at ¶¶ 10-12), for the 21.2 hours he spent before this Court representing Mr. Jackson.

CONCLUSIONS OF LAW

1. Section 206(b) of the Social Security Act, codified at 42 U.S.C. § 406(b),

provides that a court which renders a favorable judgment to a Social Security claimant may

award the claimant’s attorney a reasonable fee for his representation of the claimant “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, and the Commissioner of Social Security may, notwithstanding the

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 3 of 8
1 “When a claimant receives a favorable administrative decision following a 

remand of a case by the district court to the [Commissioner], the district court may award

attorney’s fees pursuant to 42 U.S.C. § 406(b)(1).” Rohrich v. Bowen, 796 F.2d 1030, 1031 (8th

Cir. 1986) (citation omitted).

4

provisions of section 405(i) of this title, but subject to subsection (d) of this section, certify

the amount of such fee for payment to such attorney out of, and not in addition to, the amount

of such past-due benefits.”1

 Section 406(b) thus “provides for contingent fees to be charged

to the client, with the amount to be set by the district court subject to a statutory maximum.”

Watford v. Heckler, 765 F.2d 1562, 1566 (11th Cir. 1985) (citation omitted; emphasis in

original); see Meyer v. Sullivan, 958 F.2d 1029, 1035 n.12 (11th Cir. 1992) (the total amount

of attorney’s fees that may be awarded under the Social Security Act is limited to 25% of the

past-due benefits awarded).

2. The Supreme Court has held that “§ 406(b) does not displace contingent-fee

agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for

reasonableness fees yielded by those agreements.” Gisbrecht v. Barnhart, 535 U.S. 789,

808-809, 122 S.Ct. 1817, 1829, 152 L.Ed.2d 996 (2002); see also id. at 807, 122 S.Ct. at

1828 (“Congress has provided one boundary line: Agreements are unenforceable to the

extent that they provide for fees exceeding 25 percent of the past-due benefits. . . . Within

the 25 percent boundary, as petitioners in this case acknowledge, the attorney for the

successful claimant must show that the fee sought is reasonable for the services rendered.”).

Courts that approach fee determinations by looking first

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 4 of 8
5

to the contingent-fee agreement, then testing it for

reasonableness, have appropriately reduced the attorney’s

recovery based on the character of the representation and the

results the representative achieved. If the attorney is responsible

for delay, for example, a reduction is in order so that the

attorney will not profit from the accumulation of benefits during

the pendency of the case in court. If the benefits are large in

comparison to the amount of time counsel spent on the case, a

downward adjustment is similarly in order. 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. at 808, 122 S.Ct. at 1828 (internal citations omitted).

3. In line with Gisbrecht, therefore, this Court need begin with the contingency

fee agreement and should only reduce the amount called for by the agreement upon a

determination that this amount is unreasonable. In adopting this approach, the Supreme

Court rejected the Eleventh Circuit’s adoption of the lodestar calculation of fees in Kay v.

Apfel, 176 F.3d 1322, 1323 (11th Cir. 1999) (rejecting the “contingent fee” approach to

calculation of attorney’s fees under § 406(b) in favor of the “lodestar” approach) in favor of

the contingency fee approach of other Circuits, like that of the Second Circuit in Wells v.

Sullivan, 907 F.2d 367, 371 (2d Cir. 1990) (district courts must begin with the contingency

fee agreement and may only “reduce the amount called for by the contingency agreement []

when it finds the amount to be unreasonable.”). See Gisbrecht, supra, 535 U.S. at 799 &

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 5 of 8
2 The request, when broken down, renders an hourly rate of approximately $609.88. 

6

808-809, 122 S.Ct. at 1823-1824 & 1829.

4. The Social Security Administration has determined that the past-due disability

insurance benefits to which plaintiff is entitled to receive total $51,717.92 (see Doc. 31, ¶ 9);

twenty-five percent (25%) of this amount is $12,929.48. The contingency agreement which

Jackson entered into on May 9, 2008 contemplates attorney’s fees of as much as twenty-five

percent (25%) of the claimant’s past-due benefits following a favorable decision (see Doc.

31, Exhibit B) and it is apparent to the undersigned that the amount requested by petitioner

herein ($12,929.48), is not more than 25% of the past-due benefits Jackson has been awarded

in this case. Moreover, there is no evidence that petitioner delayed this case in any manner,

nor can the Court find that the requested amount is so large as to be a windfall to the

petitioner.2

 Given the length of petitioner’s relationship with the claimant and the favorable

results achieved by petitioner for the claimant, the undersigned considers the requested

amount reasonable. Accordingly, the Magistrate Judge recommends that the Court authorize

petitioner to receive, as a fee for services rendered before this Court, the sum of $12,929.48,

same representing 25% of the total of past-due disability insurance benefits awarded plaintiff.

Upon receipt of this money, plaintiff’s counsel must then, of course, refund to the claimant

the smaller attorney-fee award made in this case. Gisbrecht, supra, 535 U.S. at 796, 122

S.Ct. at 1822 (“Congress harmonized fees payable by the Government under EAJA with fees

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 6 of 8
7

payable under § 406(b) out of claimant’s past-due Social Security benefits in this manner:

Fee awards may be made under both prescriptions, but the claimant’s attorney must ‘refun[d]

to the claimant the amount of the smaller fee.’”); see Watford, supra, 756 F.2d at 1566 n.5

(“[N]o ‘double recovery’ is permitted, and any award received by the claimant’s counsel

under the EAJA for work done in court must be used to reimburse the claimant up to any

amount previously awarded under 42 U.S.C. § 406(b)(1) for counsel’s services in court.”).

CONCLUSION

The Magistrate Judge recommends that petitioner receive as an attorney’s fee for

services rendered in this Court the sum of $12,929.48 pursuant to 42 U.S.C. § 406(b). Upon

receipt of this award, petitioner is to refund to plaintiff the smaller EAJA attorney-fee award

paid in this case (see Doc. 30 (attorney’s fees in the amount of $3,697.70 and court costs of

$350.00)).

The instructions which follow the undersigned’s signature contain important

information regarding objections to the report and recommendation of the Magistrate Judge.

DONE this the 5th day of May, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 7 of 8
3 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

8

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen

(14) days of the date of service of this document, file specific written objections with the Clerk of this court.

Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and

will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge

is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a dispositive

matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a ‘Statement of

Objection to Magistrate Judge’s Recommendation’ within ten days3 after being served with

a copy of the recommendation, unless a different time is established by order. The statement

of objection shall specify those portions of the recommendation to which objection is made

and the basis for the objection. The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the party’s arguments that the magistrate

judge’s recommendation should be reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and incorporated into

the brief in support of the objection. Failure to submit a brief in support of the objection may

be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district

judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate

for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for

a transcript, is advised that a judicial determination that transcription is necessary is required before the

United States will pay the cost of the transcript.

Case 1:08-cv-00254-CG-C Document 32 Filed 05/05/10 Page 8 of 8