United States District Court, D. Vermont
DECISION ON PLAINTIFF'S MOTION FOR AWARD OF
ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 406(b) (Doc.
Geoffrey W. Crawford, Chief Judge
for the Plaintiff in this matter seeks approval of a fee
pursuant to 42 U.S.C. § 406(b) for his representation of
the Plaintiff in proceedings before this court. He seeks an
award in the amount of $10, 356.62, which represents 25% of
the $61, 201 of past-due benefits he recovered for the
Plaintiff--that is, $15, 300.25-offset by a $4, 943.63 fee
award already granted to him by this court pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412
("EAJA"). Counsel seeks this fee in addition to,
and with no offset for, the $6, 000 contingency fee approved
by the Commissioner pursuant to 42 U.S.C. § 406(a) for
Counsel's representation of the Plaintiff in
administrative proceedings. For the reasons set forth herein,
the court approves a fee award in the amount of $4, 356.62,
which represents 25% of the gross recovery with offsets for
both the EAJA and 406(a) fee awards.
applied for benefits on July 13, 2011, and did not initially
succeed. The administrative decision denying her benefits
became final on June 6, 2014. She sought judicial . review of
the administrative decision and prevailed, winning a judgment
from this court on December 14, 2015 remanding her case for
further administrative proceedings. After the court entered
judgment in favor of the Plaintiff, the parties stipulated to
an EAJA fee award in the amount of $4, 943.63 to Plaintiffs
counsel, Lon T. McClintock of McClintock Law Office, P.C. of
remand, the Plaintiff was awarded $61, 201 in past due
benefits. The Social Security Administration awarded the
Plaintiffs counsel $6, 000 in fees pursuant to 42 U.S.C.
§ 406(a) for his representation of the Plaintiff in
Plaintiff and her counsel agreed to "a fee approved by
the Federal Court, not to exceed 25% of [the Plaintiffs]
past-due benefits." See Doc. 27-2 at 2.
U.S.C. § 406(b)(1)(A) provides:
Whenever a court renders a judgment favorable to a claimant
under this subchapter 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....
case, 25% of the gross recovery of past-due benefits is $15,
300.25, so that is the maximum fee award permitted by §
406(b). The Plaintiff and her counsel acknowledge that there
should be an offset from this figure for the EAJA fee of $4,
943.63 already awarded to the Plaintiffs attorney, and that
the additional fee awardable under § 406(b) is no
greater than $10, 356.62. That is the amount the Plaintiffs
Commissioner argues that this figure should also be subject
to an offset for a fee award approved by the Social Security
Administration pursuant to 42 U.S.C. § 406(a). Section
406(a) authorizes the Social Security Administration to award
an attorney a fee for representation of a claimant in
administrative proceedings, and caps that fee at the lesser
of 25% of the recovery or $6, 000. See 42 U.S.C.
§ 406(a)(2)(A); Maximum Dollar Limit in the Fee
Agreement Process, 74 Fed. Reg. 6080 (Feb. 4, 2009). In the
present case, the Plaintiffs counsel was awarded a §
406(a) fee of $6, 000.
the Plaintiff and her counsel contend, a § 406(a) award
does not count toward the 25% cap, the Plaintiffs counsel
could be entitled to a reasonable award of up to $10, 356.62.
If, as the government contends, a § 406(a) award does
count toward the 25% cap, the $6, 000 offset for the §
406(a) award in this case would permit a maximum fee award of
question before the court is whether the 25% caps imposed by
§§ 406(a) and 406(b) function as an aggregate 25%
cap on an attorney's total fee for representing a
claimant in both administrative and judicial proceedings, or
as separate caps that do not affect each other. There is no
controlling Second Circuit precedent on this question, and
nationally, there is a long-standing and ever-deepening
circuit split on this question. Compare Morris v. Soc.
Sec. Admin.,689 F.2d 495, 497-98 (4th Cir. 1982)
(interpreting the statutes to impose an aggregate 25% cap),
Dawson v. Finch,425 F.2d 1192, 1195 (5th Cir. 1970)
(same), Guido v. Schweiker,775 F.2d 107, 108 (3d
Cir. 1985) (same, though arguably in dicta and in a
conclusory fashion with no supporting analysis), and Wood
v. Comm V of Soc. Sec,861 F.3d 1197, 1206
(11th Cir. 2017) (following Dawson, the Fifth
Circuit case that governed at the time of the creation of the
Eleventh Circuit, as the Eleventh Circuit customarily does),
with Clark v. Astrue,529 F.3d 1211, 1218 (9th Cir.
2008) (holding ...