1 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

KENNY SAM PIERCE, : 

 : 

Plaintiff, :

: 

vs. : CIVIL ACTION 11-0214-CG-M 

 : 

CAROLYN W. COLVIN, :

Commission of Social Security,1 : 

 : 

Defendant. :

MEMORANDUM OPINION AND ORDER

This action is before the Court on Plaintiff’s Attorney’s 

Petition for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 

26). Though more than one month has passed since the Petition

was filed, the Defendant has not filed any response. 

After consideration of all pertinent materials in the file, 

it is recommended that Plaintiff’s Attorney’s Petition be 

granted (Doc. 26) and that Plaintiff’s Attorney, Quinn E. Brock, 

be awarded a fee of $14,124.50 for his services before this 

Court. 

Plaintiff, Kenny Sam Pierce, hired Quinn E. Brock on 

January 5, 2007 to pursue his claims for disability insurance 

 1

Carolyn W. Colvin became the Commissioner of Social Security on 

February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is 

substituted for Michael J. Astrue as Defendant in this action. No 

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 1 of 7
2

benefits and Supplemental Security Income before the Social 

Security Administration (hereinafter SSA) (Doc. 26, Exhibit C, 

p. 1). On April 28, 2011, Plaintiff executed a written 

contingent fee agreement through which Brock would receive 25% 

of past due benefits received by Pierce (Doc. 26, Exhibit C, p. 

2, § II).

For the past nine years and eight months, Counsel has 

prosecuted Pierce’s claims before both the Social Security 

Administration (hereinafter SSA) and this Court, commencing a 

civil action here on April 29, 2011 (Doc. 1). On November 9, 

2011, the undersigned entered a Report and Recommendation, 

pursuant to Respondent’s Motion to Remand, in which the decision 

of the Administrative Law Judge (hereinafter ALJ) was reversed 

and this action remanded for further administrative proceedings 

(Docs. 16, 17). On November 28, 2011, United States District 

Judge Granade adopted that Report and Recommendation as the 

opinion of the Court and entered judgment (Docs. 19-20). 

On remand, the ALJ rendered a fully favorable decision on 

May 22, 2014, finding Plaintiff disabled and entitled to 

disability benefits since December 16, 2003 (see Doc. 26, ¶ 7).

On July 16, 2016, Plaintiff’s Counsel received a Notice of 

 

further action needs to be taken as a result of this substitution. 42 

U.S.C. § 405(g).

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 2 of 7
3

Award from the SSA, stating that the amount of $14,124.50, 

representing twenty-five percent of Plaintiff’s past-due 

benefits, had been withheld for payment of authorized attorney 

fees (Doc. 26, Exhibit H). The letter acknowledged that Brock 

had already received $6,000.00 in administrative attorney fees 

and that these two amounts, together, equaled twenty-five 

percent of Plaintiff’s past-due benefits (id.; see also Doc. 26, 

Exhibit E). 

On August 5, 2016, Brock filed the pending Motion,

requesting approval of a fee in the amount of $14,124.50 (Doc. 

26). Since filing this action on April 29, 2011, Counsel has 

spent approximately fourteen hours2 representing Pierce before 

this Court without compensation (Doc. 26, Exhibit B).3

The Social Security Act provides that when a court renders 

a favorable judgment to a Social Security claimant “who was 

represented before the court by an attorney, the court may 

determine and allow as part of its judgment a reasonable fee for 

such representation, 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[.]” 42 U.S.C. § 406(b)(1)(A). The fee 

 2

Plaintiff’s Attorney has provided a computation for all work 

done in this case, including time that pre- and post-dated work done 

in this Court. The Court has guesstimated that approximately fourteen 

of the sixty-four hour work total was done here. 3

The requested fee amounts to more than $1008.00 per hour. 

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 3 of 7
4

is payable “out of, and not in addition to, the amount of [the] 

past-due benefits.” Id. Thus, the Act “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) (citations omitted) 

(emphasis in original).

The Supreme Court, in Gisbrecht v. Barnhart, 535 U.S. 789, 

805-07 (2002), concluded that Congress designed § 406(b) to 

monitor fee agreements between Social Security claimants and 

their counsel. Specifically, the Court held that “§ 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.” Id. at 

807. The only boundaries made by Congress are that the fee

cannot exceed twenty-five percent of the total disbursement and 

that the “fee sought [be] reasonable for the services rendered.” 

Id. 

The fee provided for in § 406(b) is in addition to that 

provided in § 406(a) that states that the Commissioner may award 

attorney’s fees to a successful claimant’s attorney for work 

performed before the SSA. Fees awarded pursuant to § 406(a) and 

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 4 of 7
5

§ 406(b) are awarded in addition to any attorney’s fee a 

claimant’s attorney may receive pursuant to the Equal Access to 

Judgment Act (hereinafter EAJA), 28 U.S.C. § 2412, if the 

Commissioner’s position before the Court was not “substantially 

justified.” Gisbrecht, 535 U.S. at 796. In order to avoid a 

double recovery, a claimant’s attorney who is awarded attorney’s 

fees under both § 406(b) and EAJA must refund the lesser amount 

to his or her client. Id.

The Gisbrecht Court did not set out the specific facts that 

the district courts are to consider when reviewing fees yielded 

by a contingent-fee agreement. It did, however, point to the 

following factors which may be considered in reviewing for 

reasonableness: (1) the character of representation; (2) the 

result achieved by the attorney; (3) any delay caused by the 

attorney; (4) the amount of benefits relative to the time spent 

on the action such that the attorney receives a windfall; (5) 

fraud or overreaching in making the agreement; and (6) a 

requirement that the requested fee does not exceed twenty-five 

percent of past-due benefits. See Gisbrecht, 535 U.S. at 808. 

A decision from the Second Circuit Court of Appeals further 

noted that “[s]hould the district court find that the agreement 

provides an unreasonable fee under the circumstances, the court 

may reduce the fee provided it states the reasons for and the 

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 5 of 7
6

amounts of the deductions.” Wells v. Sullivan, 907 F.2d 367, 

372 (2nd Cir. 1990). 

After reviewing the fee petition and accompanying documents

and the guidance provided by Gisbrecht and the opinions cited 

above, the Court finds that Brock has diligently represented 

Plaintiff since April 2011 in this Court and has been successful 

in obtaining past-due benefits for Plaintiff. There is no 

evidence that Brock contributed to any undue delay in this 

action, either before the Commissioner or before this Court, nor 

evidence of any fraud or overreaching in procuring or making the 

contingent-fee agreement. The total fee requested does not 

exceed twenty-five percent of past-due benefits and comports 

with Plaintiff’s contingent-fee agreement with his Attorney. 

While the requested fee is large, it cannot be considered a 

windfall or unreasonable. The Court finds that the requested 

fee of $14,124.50 is reasonable for the services rendered before 

this Court.

In a Report entered on March 20, 2012 (Doc. 23), the 

undersigned recommended that the Commissioner pay Plaintiff’s 

Counsel $2,062.50 in fees pursuant to EAJA. On April 4, 2012,

Judge Granade adopted that Report and Recommendation as the 

opinion of the Court and entered Judgment (Docs. 24-25). In the 

instant Motion, Brock provides evidence that he did not receive 

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 6 of 7
7

the $2,062.50 as the amount was used to pay child support 

payments past due in Dallas County (Doc. 26, ¶ 5, and Exhibit 

D). Therefore, the Court finds that, under § 406(b), Brock is 

not subject to a dollar-for-dollar offset in this fee award as 

he did not receive the EAJA fee.

Therefore, it is recommended, without objection from 

Defendant, that Plaintiff’s Attorney’s Petition for Attorney’s

Fees be granted (Doc. 26) and that Plaintiff’s Attorney be

awarded a fee in the amount of $14,124.50 for his services 

before this Court. 

DONE this 8th day of September, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 2:11-cv-00214-CG-M Document 27 Filed 09/08/16 Page 7 of 7