UNITDEISDT SRTICATT EOSF D MISINTRNIECSTO CTOAU  RT    


Paula A.,1                         Case No. 22-cv-2358 (KMM/DJF)         

               Plaintiff,                                                

v.                                       REPORT AND                      
                                      RECOMMENDATION                     
Kilolo Kijakazi,                                                         
Acting Commissioner of Social Security,                                  

               Defendant.                                                


    This matter is before the Court on Plaintiff’s Motion for Attorney Fees Pursuant to 

(b) (“Fee Motion”) (ECF No. 45) related to a contingency fee agreement between 
Plaintiff and her counsel (“Fee Agreement”) (ECF No. 48-1).  The undersigned considers the 
matter pursuant to 

(b)(1)(B) and Local Rule 72.1.  For the reasons set forth below, 
the Court recommends the Fee Motion be granted.                           
I.   Background                                                           
    On September 9, 2022, Plaintiff signed a Fee Agreement with her counsel that stated: 
    If my claim(s) is favorably decided after an appeal to the Appeals Council, I will 
    pay the firm/my representative a fee equal to twenty five percent (25%) of all past 
    due benefits which are awarded on my account plus any Equal Access to Justice 
    Act (EAJA) award, regardless of whether those amounts exceed Six Thousand 
    dollars ($6,000.00).  If my claim ever reaches the Appeals Council level, the 
    firm/my representative is entitled in such circumstances to pursue fees through the 
    fee petition process and/or 

(b) and/or any EAJA award (or any 
    combination thereof).  The 25% figure shall be based on the total amount of 
    past-due benefits, before payment to any other person or agency, including but not 
    limited to the Department of Social Services, the Social Security Administration, 
    any child support enforcement authority, state or federal tax agencies, or any person 
    claiming under a right to child or spousal support. I understand that the 25% of fees 
    described above does not include expenses or costs and does not include any EAJA 
    award.                                                               

    1 This District has adopted a policy of using only the first name and last initial of any 
nongovernmental parties in orders in Social Security matters.             
(ECF N o. 48-1.)  Plaintiff filed a Complaint in this matter on September 26, 2022 with the 
assistance of counsel (ECF No. 1).  On October 11, 2023, the Court remanded this matter to the 
Commissioner  pursuant  to  sentence  four  of  

(g),  for  further  administrative 
proceedings (ECF No. 27).  In June 2024, the Court recommended that Plaintiff be awarded 

$7,250.40 in attorney’s fees under the Equal Access to Justice Act U.S.C. 28 § 2412(D) (“EAJA”) 
(ECF No. 43).                                                             
    Upon remand, an Administrative Law Judge issued a favorable decision to Plaintiff 
finding her disabled.  (ECF No. 45 ¶ 1.)  Plaintiff’s “Notice of Award” indicates that she is entitled 
to $107, 482.00 in past due benefits, with twenty-five percent ($26,870. 0500) withheld to pay an 
approved attorney fee (ECF No. 48 at 3-4).  Plaintiff’s attorneys now seek an award of attorneys’ 
fees in the amount of $26,870.50 reduced by the original EAJA fee award of $7,250.40, for a net 
total fee of $19,620.10.  (ECF No. 45 ¶ 5.)  Defendant “neither supports nor opposes [Plaintiff’s 
attorney’s] request for fees in the amount of $26,870.50 under 

(b)” but asks that 
the Court’s reasonableness determination of the fee request be based on the full $26,870.50, rather 

than the net fee request of $19,620.10 after offsetting the EAJA award.  (ECF No. 49 at 2-3.)  
I.   Legal Standard                                                       
    Under section 406(b):                                                
    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.                                          

(b).                                                          
    The Supreme Court has recognized that the Social Security Act has no “design to prohibit 
or discourage attorneys and claimants from entering into contingent-fee agreements.”  Gisbrecht 
v. Barnhart, 

 (2002).  Instead, courts are tasked with independently determining 
whether  attorney’s  fees  sought  under  such  agreements  are  reasonable.    See  

.  
Contingency agreements are unenforceable when they require fees in excess of 25 percent of the 
past-due benefits, but when “[w]ithin the 25 percent boundary … the attorney for the successful 
claimant  must  show  that  the  fee  sought  is  reasonable  for  the  services  rendered.”    

 
at 807 (citing 

(b)).  “A  reduced  fee  may  be  appropriate  where  the  legal 
representation was substandard, counsel was responsible for delay that increased the fund from 
which the fee was payable, or if benefits were large in comparison to the amount of time counsel 
spent on the case.”  Shane T. v. Saul, Case No. 18-cv-634 (BRT), 

, at *1 (D. 
Minn. Sept. 25, 2020) (citing Gisbrecht, 

).                
    In addition, when a court awards attorney’s fees to a plaintiff under the EAJA and awards 

fees to the plaintiff’s attorney under section 406(b), the attorney must refund the amount of the 
smaller received fee to the plaintiff.  Gisbrecht, 

.       
II.  Analysis                                                             
    Plaintiff’s attorney  contends his fee request of $26,870.50 under Section 406(b) is 
reasonable because Plaintiff hired him based on his experience in federal court appeals and his  
representation of Plaintiff in federal court “was decisive in achieving such a highly successful 
result.”  (ECF No. 46 at 3; see also ECF No. 45 ¶ 1 .)  He also points out that the total fee request 
is twenty-five percent of Plaintiff’s past-due benefits—the amount Plaintiff agreed to pay counsel 
under the Fee Agreement.  (ECF No. 45 ¶¶ 5, 10.)  Finally, Plaintiff’s attorney argues his fee 

request is appropriate based on his 25 years of experience, national recognition, non-contingent 
hourly rate of $595, and his expectation that contingency cases be paid a higher rate due to the 
considerable risk of non-recovery.  (Id. ¶ 13.2)  Plaintiff’s attorney also attached a Statement of 


    2 There are two paragraphs with the number 13.  (See ECF No. 45 at 4-5 ¶¶ 13, 13.)  The 
Court’s reference is to the first paragraph 13.                           
Attorney  Time  Expended,  detailing  his  experience  as  a  legal  practitioner  and  an  hourly 
breakdown of the 45.8 hours he spent on Plaintiff’s appeal (ECF No. 48-2).   
    The Court finds Plaintiff’s attorney’s fee request is reasonable and recommends that the 
Fee Motion be granted.  Plaintiff’s Fee Agreement provides that if she wins in federal court, her 
counsel is entitled to 25 percent of any past-due benefits owed to her.  (ECF No. 48-1.)  Plaintiff 
prevailed in federal court, entitling her to past-due benefits.  The Court does not find any basis in 
the record to conclude her attorney’s work was substandard, resulted in undue delay, or involved 
an amount of effort that is disproportionate to the outcome.  Rather, Plaintiff’s attorney, expended 
an appropriate amount of time on Plaintiff’s appeal, ultimately resulting in a full award of past-
due benefits.  (See ECF Nos. 48, 48-2.)                                   

    Moreover, had Plaintiff’s attorney charged his non-contingency hourly rate of $595 for 
the 45.8 hours he spent on Plaintiff’s case, the fee would have been $27,251—$380 more than 
the total amount he seeks under Section 406(b).  (See ECF No. 48-2.)  While the asserted standard 
hourly rate is relatively high, the Court considers that the attorney is highly experienced, including 
more than 10 years in the Social Security Administration and as a Special Assistant United States 
Attorney, and many more years developing a national practice in this area.  The Court further 
considers that counsel bore the risk of potential failure under the contingency fee arrangement.   
    Because Plaintiff’s attorney’s fee request of $26,870.50 is twenty-five percent of the past-
due benefits Plaintiff is owed, and because there does not appear to be any rationale to reduce the 

fee, both the Fee Agreement and the statute permit the requested award.  Gisbrecht, 

; see also (ECF No. 45-1).  The Court therefore recommends that Plaintiff’s Fee Motion be 
granted and Plaintiff’s Counsel be awarded $26,870.50 in fees to be paid from Plaintiff’s past-
due benefits, pursuant to 

(b).  But, to account for the original fee award of 
$7,250.40  the  Court  previously  recommended  be  awarded  under  the  EAJA,  the  Court 
recommends that the $26,870.50 be reduced by $7,250.40 for a net award of $19,620.10.  
Gisbrecht, 

; see also Jackson v. Comm’r of Soc. Sec., 

 (11th 
Cir. 2010) (approving attorney’s request to offset Section 406(b) award with previously awarded 
EAJA fees).                                                               
                       RECOMMENDATION                                    
    Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS 
HEREBY RECOMMENDED THAT:                                                  
    1.   Plaintiff’s  Motion for Attorney Fees Pursuant to 

(b) (ECF No. [45]) 
be GRANTED; and                                                           
    2.   Plaintiff’s Counsel be awarded $26,870.50 in fees, reduced by the Court’s original 

EAJA fee award of $7,250.40, for a net total fee of $19,620.10, to be paid from Plaintiff’s past-
due benefits, pursuant to 

(b).                             


Dated: September 16, 2024     s/ Dulce J. Foster                          
                             DULCE J. FOSTER                             
                             United States Magistrate Judge              


                            NOTICE                                       

This Report and Recommendation is not an order or judgment of the District Court and is therefore 
not appealable directly to the Eighth Circuit Court of Appeals.  Under Local Rule 72.2(b)(1), “a 
party may file and serve specific written objections to a magistrate judge’s proposed finding and 
recommendations within 14 days after being served a copy” of the Report and Recommendation.  
A party may respond to those objections within 14 days after being served a copy of the objections.  
LR 72.2(b)(2).  All objections and responses must comply with the word or line limits set forth in 
LR 72.2(c).                                                               

                  UNITDEISDT SRTICATT EOSF D MISINTRNIECSTO CTOAU  RT    


Paula A.,1                         Case No. 22-cv-2358 (KMM/DJF)         

               Plaintiff,                                                

v.                                       REPORT AND                      
                                      RECOMMENDATION                     
Kilolo Kijakazi,                                                         
Acting Commissioner of Social Security,                                  

               Defendant.                                                


    This matter is before the Court on Plaintiff’s Motion for Attorney Fees Pursuant to 

(b) (“Fee Motion”) (ECF No. 45) related to a contingency fee agreement between 
Plaintiff and her counsel (“Fee Agreement”) (ECF No. 48-1).  The undersigned considers the 
matter pursuant to 

(b)(1)(B) and Local Rule 72.1.  For the reasons set forth below, 
the Court recommends the Fee Motion be granted.                           
I.   Background                                                           
    On September 9, 2022, Plaintiff signed a Fee Agreement with her counsel that stated: 
    If my claim(s) is favorably decided after an appeal to the Appeals Council, I will 
    pay the firm/my representative a fee equal to twenty five percent (25%) of all past 
    due benefits which are awarded on my account plus any Equal Access to Justice 
    Act (EAJA) award, regardless of whether those amounts exceed Six Thousand 
    dollars ($6,000.00).  If my claim ever reaches the Appeals Council level, the 
    firm/my representative is entitled in such circumstances to pursue fees through the 
    fee petition process and/or 

(b) and/or any EAJA award (or any 
    combination thereof).  The 25% figure shall be based on the total amount of 
    past-due benefits, before payment to any other person or agency, including but not 
    limited to the Department of Social Services, the Social Security Administration, 
    any child support enforcement authority, state or federal tax agencies, or any person 
    claiming under a right to child or spousal support. I understand that the 25% of fees 
    described above does not include expenses or costs and does not include any EAJA 
    award.                                                               

    1 This District has adopted a policy of using only the first name and last initial of any 
nongovernmental parties in orders in Social Security matters.             
(ECF N o. 48-1.)  Plaintiff filed a Complaint in this matter on September 26, 2022 with the 
assistance of counsel (ECF No. 1).  On October 11, 2023, the Court remanded this matter to the 
Commissioner  pursuant  to  sentence  four  of  

(g),  for  further  administrative 
proceedings (ECF No. 27).  In June 2024, the Court recommended that Plaintiff be awarded 

$7,250.40 in attorney’s fees under the Equal Access to Justice Act U.S.C. 28 § 2412(D) (“EAJA”) 
(ECF No. 43).                                                             
    Upon remand, an Administrative Law Judge issued a favorable decision to Plaintiff 
finding her disabled.  (ECF No. 45 ¶ 1.)  Plaintiff’s “Notice of Award” indicates that she is entitled 
to $107, 482.00 in past due benefits, with twenty-five percent ($26,870. 0500) withheld to pay an 
approved attorney fee (ECF No. 48 at 3-4).  Plaintiff’s attorneys now seek an award of attorneys’ 
fees in the amount of $26,870.50 reduced by the original EAJA fee award of $7,250.40, for a net 
total fee of $19,620.10.  (ECF No. 45 ¶ 5.)  Defendant “neither supports nor opposes [Plaintiff’s 
attorney’s] request for fees in the amount of $26,870.50 under 

(b)” but asks that 
the Court’s reasonableness determination of the fee request be based on the full $26,870.50, rather 

than the net fee request of $19,620.10 after offsetting the EAJA award.  (ECF No. 49 at 2-3.)  
I.   Legal Standard                                                       
    Under section 406(b):                                                
    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.                                          

(b).                                                          
    The Supreme Court has recognized that the Social Security Act has no “design to prohibit 
or discourage attorneys and claimants from entering into contingent-fee agreements.”  Gisbrecht 
v. Barnhart, 

 (2002).  Instead, courts are tasked with independently determining 
whether  attorney’s  fees  sought  under  such  agreements  are  reasonable.    See  

.  
Contingency agreements are unenforceable when they require fees in excess of 25 percent of the 
past-due benefits, but when “[w]ithin the 25 percent boundary … the attorney for the successful 
claimant  must  show  that  the  fee  sought  is  reasonable  for  the  services  rendered.”    

 
at 807 (citing 

(b)).  “A  reduced  fee  may  be  appropriate  where  the  legal 
representation was substandard, counsel was responsible for delay that increased the fund from 
which the fee was payable, or if benefits were large in comparison to the amount of time counsel 
spent on the case.”  Shane T. v. Saul, Case No. 18-cv-634 (BRT), 

, at *1 (D. 
Minn. Sept. 25, 2020) (citing Gisbrecht, 

).                
    In addition, when a court awards attorney’s fees to a plaintiff under the EAJA and awards 

fees to the plaintiff’s attorney under section 406(b), the attorney must refund the amount of the 
smaller received fee to the plaintiff.  Gisbrecht, 

.       
II.  Analysis                                                             
    Plaintiff’s attorney  contends his fee request of $26,870.50 under Section 406(b) is 
reasonable because Plaintiff hired him based on his experience in federal court appeals and his  
representation of Plaintiff in federal court “was decisive in achieving such a highly successful 
result.”  (ECF No. 46 at 3; see also ECF No. 45 ¶ 1 .)  He also points out that the total fee request 
is twenty-five percent of Plaintiff’s past-due benefits—the amount Plaintiff agreed to pay counsel 
under the Fee Agreement.  (ECF No. 45 ¶¶ 5, 10.)  Finally, Plaintiff’s attorney argues his fee 

request is appropriate based on his 25 years of experience, national recognition, non-contingent 
hourly rate of $595, and his expectation that contingency cases be paid a higher rate due to the 
considerable risk of non-recovery.  (Id. ¶ 13.2)  Plaintiff’s attorney also attached a Statement of 


    2 There are two paragraphs with the number 13.  (See ECF No. 45 at 4-5 ¶¶ 13, 13.)  The 
Court’s reference is to the first paragraph 13.                           
Attorney  Time  Expended,  detailing  his  experience  as  a  legal  practitioner  and  an  hourly 
breakdown of the 45.8 hours he spent on Plaintiff’s appeal (ECF No. 48-2).   
    The Court finds Plaintiff’s attorney’s fee request is reasonable and recommends that the 
Fee Motion be granted.  Plaintiff’s Fee Agreement provides that if she wins in federal court, her 
counsel is entitled to 25 percent of any past-due benefits owed to her.  (ECF No. 48-1.)  Plaintiff 
prevailed in federal court, entitling her to past-due benefits.  The Court does not find any basis in 
the record to conclude her attorney’s work was substandard, resulted in undue delay, or involved 
an amount of effort that is disproportionate to the outcome.  Rather, Plaintiff’s attorney, expended 
an appropriate amount of time on Plaintiff’s appeal, ultimately resulting in a full award of past-
due benefits.  (See ECF Nos. 48, 48-2.)                                   

    Moreover, had Plaintiff’s attorney charged his non-contingency hourly rate of $595 for 
the 45.8 hours he spent on Plaintiff’s case, the fee would have been $27,251—$380 more than 
the total amount he seeks under Section 406(b).  (See ECF No. 48-2.)  While the asserted standard 
hourly rate is relatively high, the Court considers that the attorney is highly experienced, including 
more than 10 years in the Social Security Administration and as a Special Assistant United States 
Attorney, and many more years developing a national practice in this area.  The Court further 
considers that counsel bore the risk of potential failure under the contingency fee arrangement.   
    Because Plaintiff’s attorney’s fee request of $26,870.50 is twenty-five percent of the past-
due benefits Plaintiff is owed, and because there does not appear to be any rationale to reduce the 

fee, both the Fee Agreement and the statute permit the requested award.  Gisbrecht, 

; see also (ECF No. 45-1).  The Court therefore recommends that Plaintiff’s Fee Motion be 
granted and Plaintiff’s Counsel be awarded $26,870.50 in fees to be paid from Plaintiff’s past-
due benefits, pursuant to 

(b).  But, to account for the original fee award of 
$7,250.40  the  Court  previously  recommended  be  awarded  under  the  EAJA,  the  Court 
recommends that the $26,870.50 be reduced by $7,250.40 for a net award of $19,620.10.  
Gisbrecht, 

; see also Jackson v. Comm’r of Soc. Sec., 

 (11th 
Cir. 2010) (approving attorney’s request to offset Section 406(b) award with previously awarded 
EAJA fees).                                                               
                       RECOMMENDATION                                    
    Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS 
HEREBY RECOMMENDED THAT:                                                  
    1.   Plaintiff’s  Motion for Attorney Fees Pursuant to 

(b) (ECF No. [45]) 
be GRANTED; and                                                           
    2.   Plaintiff’s Counsel be awarded $26,870.50 in fees, reduced by the Court’s original 

EAJA fee award of $7,250.40, for a net total fee of $19,620.10, to be paid from Plaintiff’s past-
due benefits, pursuant to 

(b).                             


Dated: September 16, 2024     s/ Dulce J. Foster                          
                             DULCE J. FOSTER                             
                             United States Magistrate Judge              


                            NOTICE                                       

This Report and Recommendation is not an order or judgment of the District Court and is therefore 
not appealable directly to the Eighth Circuit Court of Appeals.  Under Local Rule 72.2(b)(1), “a 
party may file and serve specific written objections to a magistrate judge’s proposed finding and 
recommendations within 14 days after being served a copy” of the Report and Recommendation.  
A party may respond to those objections within 14 days after being served a copy of the objections.  
LR 72.2(b)(2).  All objections and responses must comply with the word or line limits set forth in 
LR 72.2(c).