Case Name in Social Security Case - Unavailable

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
GARY CAMPOS
v.
COMMISSIONER, SSA
§
§
§
§
§
CIVIL NO. 4:21-CV-82-SDJ
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s counsel’s Unopposed Petition to Obtain Approval
of a Fee for Representing a Social Security Claimant. (Dkt. #22). The Commissioner
did not file a response and declined to take a position on the petition. (Dkt. #22 at 17).
For the reasons below, the Court will grant the petition in part, deny the petition in
part, and award counsel $2,887.50 in attorney’s fees under 42 U.S.C. § 406(b).
I. B ACKGROUND
Plaintiff 	Gary 	Campos 	filed 	this 	action 	seeking 	judicial 	review 	of 	the
Commissioner’s decision denying his application for benefits under Title II of the
Social Security Act. (Dkt. #1). Instead of filing an answer to Plaintiff’s complaint, the
Commissioner moved for remand on non-substantive grounds. (Dkt. #12). The
Commissioner explained that “remand is required in this case because significant
portions of the recording of the June 4, 2020 administrative hearing are entirely
inaudible. Moreover, it appears that much of the inaudible portion consists of
Plaintiff’s testimony.” (Dkt. #12 at 1). Upon the Commissioner’s motion, the Court
reversed the Commissioner’s final decision and remanded this action for further
administrative proceedings pursuant to 42 U.S.C. § 405(g). (Dkt. #13, #14).
Case 4:21-cv-00082-SDJ-KPJ Document 23 Filed 01/08/26 Page 1 of 6 PageID #:
<pageID>

2
On remand, the Social Security Administration (“SSA”) found that Plaintiff
had been disabled since June 2018 and was therefore entitled to past-due benefits.
(Dkt. #22-1 at 10); (Dkt. #22-2). The Court subsequently entered a final judgment in
favor of Plaintiff, (Dkt. #19), and awarded Plaintiff’s counsel $2,482.90 in fees under
the Equal Access to Justice Act (“EAJA”), (Dkt. #21 at 5). In a later communication,
the SSA notified Plaintiff’s counsel that it had “withheld the amount of $7,102.13[,]
which represents 25 percent of the past-due benefits payable to GARY D CAMPOS.”
(Dkt. #22-3 at 2). The SSA instructed counsel to submit a petition “to the United
States District Court for [the] Eastern [District of] Texas if you wish payment of your
fee to be certified from withheld benefits.” (Dkt. #22-3 at 2).
Plaintiff’s counsel now seeks a fee authorization in the amount of $7,102.13
pursuant to 42 U.S.C. § 406(b) for services rendered in this matter. (Dkt. #22 at 10).
In support of his request, counsel cites his extensive experience in social security law
and a contingency fee agreement between him and his client. (Dkt. #22 at 7–9). That
agreement, signed by Plaintiff, provides: “If a federal court rules in my favor, I will
pay [counsel] an attorney fee of 25% of all past-due benefits in my disability claims
paid to me and my dependents.” (Dkt. #22-4 at 2).
II. LEGAL S TANDARD
Pursuant to 42 U.S.C. § 406(b)(1)(A), when a court “renders a judgment
favorable to a claimant . . . who was represented before the court by an attorney,” the
court may award “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
Case 4:21-cv-00082-SDJ-KPJ Document 23 Filed 01/08/26 Page 2 of 6 PageID #:
<pageID>

3
judgment.” A remand that ultimately results in an award of benefits is a “judgment
favorable to a claimant.” Jackson v. Astrue, 705 F.3d 527, 531 (5th Cir. 2013).
“Fees under [Section] 406(b) satisfy a client’s obligation to his or her counsel
and, accordingly, are paid out of the plaintiff’s social security benefits.” Siebe v.
Comm’r of Soc. Sec. Admin., No. 5:19-CV-30, 2021 WL 3493167, at *1 (E.D. Tex.
Apr. 19, 2021). A contingency fee agreement may set the amount of the Section 406(b)
fees so long as (1) the amount complies with Section 406(b)’s 25% cap and (2) the
amount is reasonable under the facts of the case—i.e., it does not result in a windfall
for the attorney. Gisbrecht v. Barnhart, 535 U.S. 789, 807–08, 122 S.Ct. 1817,
152 L.Ed.2d 996 (2002).
The Fifth Circuit has identified several non-exhaustive factors that courts may
consider when determining whether an award is reasonable or whether it results in
a windfall, including: “risk of loss in the representation, experience of the attorney,
percentage of the past-due benefits the fee constitutes, value of the case to a claimant,
degree of difficulty, and whether the client consents to the requested fee.” Jeter v.
Astrue, 622 F.3d 371, 382 (5th Cir. 2010) (cleaned up). Courts may also consider
whether the attorney unnecessarily delayed the litigation. Id. at 380 n.10.
The “windfall” prohibition “does not preclude attorneys from recovering what
may mathematically seem like a high fee award if the attorney’s success on appeal is
of his own making.” Jeter, 622 F.3d at 381. But it can preclude such an award when
“the success on appeal is not of the attorney’s making, but rather, is attributable to
some other source for which it would be unreasonable to compensate the attorney.”
Case 4:21-cv-00082-SDJ-KPJ Document 23 Filed 01/08/26 Page 3 of 6 PageID #:
<pageID>

4
Id. When this is the case, a court may refuse to enforce the parties’ contingency fee
agreement and may instead use the lodestar method to determine a reasonable fee
award. See, e.g., Salinas v. O’Malley, No. EP-21-CV-31-DCG-ATB, 2024 WL 3991255,
at *6–7 (W.D. Tex. Aug. 28, 2024).
A prevailing claimant may collect fees under both Section 406(b) and the
EAJA, “but the claimant’s attorney must refund to the claimant the amount of the
smaller fee.” Gisbrecht, 535 U.S. at 796 (cleaned up).
III. DISCUSSION
The Court finds that an award of $7,102.13 would result in an unreasonable
windfall to Plaintiff’s counsel. Accordingly, the Court will not enforce the parties’ 25%
contingency fee agreement and will, instead, award a fee of $2,887.50.
Counsel expended a mere 7.70 hours on this case. (Dkt. #22 at 13). Thus, an
award of $7,102.13 would translate to an effective hourly rate of approximately
$922.35. That hourly rate might be warranted were counsel’s success “of his own
making.” Jeter, 622 F.3d at 381; see, e.g., Sabourin v. Colvin, No. 3:11-CV-2109, 2014
WL 3949506, at *1–2 (N.D. Tex. Aug. 12, 2014) (awarding counsel an effective hourly
rate 	of 	$1,245.55). 	But 	the 	record 	here 	suggests 	that 	counsel’s 	success 	was
“attributable to some other source for which it would be unreasonable to compensate
[him].” 	Jeter, 	622 	F.3d 	at 	381. 	Specifically, 	counsel’s 	success 	appears 	to 	be
attributable to a faulty recording from the administrative hearing that rendered
much of Plaintiff’s testimony inaudible. (Dkt. #12 at 1). When the Commissioner
discovered this defect, it voluntarily moved to remand the case—before Plaintiff’s
Case 4:21-cv-00082-SDJ-KPJ Document 23 Filed 01/08/26 Page 4 of 6 PageID #:
<pageID>

5
counsel had expended significant time on the case. Importantly, counsel did not file
a substantive brief in this case; the Commissioner moved for remand of its own accord
and for non-substantive reasons. Cf. Rife v. Comm’r of Soc. Sec. Admin., No. 4:21-CV-
197-SDJ (E.D. Tex. Apr. 26, 2024), (Dkt. #43 at 3) (approving a 25% contingency fee
where 	the 	Commissioner moved for remand “only 	after Plaintiff 	filed a 	brief
explaining the errors at the administrative level”). Thus, an award of $7,102.13—at
an effective hourly rate of $922.35—would result in a windfall to Plaintiff’s counsel.
Having determined that the requested 25% contingency fee of $7,102.13 is
unreasonable, the Court must now determine an appropriate fee for this case. In his
petition, Plaintiff’s counsel represented that, although he doesn’t normally charge
fees on an hourly basis, his standard hourly rate for social security cases is $375.
(Dkt. #22 at 7, 16). The Court finds $375 to be a reasonable hourly rate for this matter.
See Chandler v. Kijakazi, No. 4:20-CV-517-ALM-KPJ, 2023 WL 3818390, at *5
(E.D. Tex. 	May 	19, 	2023) 	(approving 	an 	hourly 	rate 	of 	$357.40), report 	and
recommendation adopted, No. 4:20-CV-517-ALM-KPJ, 2023 WL 3819191 (E.D. Tex.
June 5, 2023). The Court also finds that counsel reasonably expended 7.70 hours on
this matter. See (Dkt. #22 at 11–13). Thus, an appropriate award of attorney’s fees
here is $2,887.50.
IV. C ONCLUSION
For these reasons, the Court GRANTS in part and DENIES in part
Plaintiff’s counsel’s Unopposed Petition to Obtain Approval of a Fee for Representing
a Social Security Claimant, (Dkt. #22).
Case 4:21-cv-00082-SDJ-KPJ Document 23 Filed 01/08/26 Page 5 of 6 PageID #:
<pageID>

6
It is therefore ORDERED that Plaintiff’s counsel, Ronald D. Honig, is
AWARDED $2,887.50 in attorney’s fees under 42 U.S.C. § 406(b), to be paid from
the past-due benefits withheld from Plaintiff and retained by the Commissioner.
Upon receipt of these attorney’s fees, Plaintiff’s counsel shall remit to Plaintiff
$2,482.90, which the Court previously awarded under the Equal Access to Justice
Act.
Case 4:21-cv-00082-SDJ-KPJ Document 23 Filed 01/08/26 Page 6 of 6 PageID #:
<pageID>