Unreported / Non-Citable
Background
Christina V., through counsel, filed an Amended Petition for Attorneys' Fees under 42 U.S.C. § 406(b) on July 9, 2026 (Dkt. No. 17), seeking $10,000.00 for legal fees incurred for work completed at the district-court level. Frank J. Bisignano, Commissioner of Social Security, filed a response on July 22, 2026 (Dkt. No. 21), stating that he "neither supports nor opposes" the petition. The petition establishes that Plaintiff received a fully favorable administrative decision on February 25, 2026, and that the corresponding Notice of Award identifies $49,225.50 — twenty-five percent of Plaintiff's total past-due benefits — as withheld in case the Administration needs to pay Plaintiff's representative. Counsel further stated that $15,000 was requested from the Social Security Administration for administrative-level work and that, as of July 9, 2026, no attorneys' fees had been paid.
The petition is supported by counsel's hourly breakdown of time worked (Dkt. No. 17-3) and the fee agreement between Plaintiff and her counsel (Dkt. No. 17-4). The court explained that when a court renders judgment in favor of a represented claimant, § 406(b) permits the court to determine and allow a reasonable fee for that representation, not in excess of 25 percent of the total past-due benefits, paid from the claimant's award. Invoking Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002), the court reiterated that § 406(b) does not displace contingent-fee agreements but instead instructs courts to review for reasonableness the fees those agreements yield.
The Court’s Holding
The court first found that the requested $10,000 does not exceed 25 percent of Plaintiff's total past-due benefits. Its reasonableness review of the fee agreement, however, raised two points of concern. First, the fee agreement does not appear to authorize Plaintiff's counsel to collect attorneys' fees under 42 U.S.C. § 406(b), appearing instead to authorize payment only under § 406(a)(2). Second, even assuming arguendo that counsel is entitled to fees under § 406(b) — which the court stated it was not presently persuaded of — the agreement appears to authorize only "the lesser of 25% of the amount of past-due benefits awarded to [Plaintiff] and any auxiliary beneficiaries, or $9,200.00." In light of that language, the court observed that counsel may be entitled to only $9,200 in fees, if he is entitled to fees at all.
Rather than granting or denying the petition, the court ordered Plaintiff to file supplemental briefing addressing these issues by no later than October 23, 2026. The Commissioner will have until October 30, 2026 to file an optional response to the supplemental briefing. The order therefore leaves unresolved both the availability of any § 406(b) fee and, if one is available, the reasonable amount of that fee.
Key Takeaways
- A fee request below § 406(b)'s 25-percent statutory ceiling still must satisfy the court's reasonableness review under Gisbrecht.
- The court questioned whether a fee agreement referring only to § 406(a)(2) authorizes counsel to collect a separate fee under § 406(b).
- The agreement's lesser-of language led the court to identify $9,200 as a possible contractual ceiling rather than the requested $10,000.
- The court expressly withheld any conclusion that counsel was entitled to fees and ordered supplemental briefing instead of deciding the petition.
- The Commissioner's response neither supported nor opposed the fee request, and any response to the supplemental briefing is optional.
Why It Matters
The order illustrates that a Social Security attorney-fee petition requires more than arithmetic compliance with § 406(b)'s percentage cap. The wording of the fee agreement can raise distinct questions about statutory authorization and about the maximum amount counsel may receive. Its practical effect is procedural: the $10,000 request remains pending, with supplemental submissions directed to whether any fee is authorized under § 406(b) and whether the agreement limits recovery to $9,200.
For practitioners, the decision underscores that contingent-fee agreements in Social Security cases should clearly address court-level fees under § 406(b) and state any dollar ceiling, since ambiguity on either point can defer resolution of an otherwise facially compliant fee request.