Castleberry v. Colvin(CONSENT)

Filing 32

MEMORANDUM OPINION AND ORDER: It is ORDERED and ADJUDGED that, pursuant to the 42 U.S.C. § 406(b), the petition for attorneys fees (doc. # 25 ) be and is hereby GRANTED, and the Commissioner shall pay to the plaintiff's attorney $11, 749.50 of the amount previously withheld from the plaintiff's past due benefits. It is further ORDERED that the plaintiffs counsel refund to the plaintiff the amount of $4,232.00 in fees previously awarded under the Equal Access to Justice Act. Signed by Honorable Judge Charles S. Coody on 9/6/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEREK M. CASTLEBERRY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 1:13cv411-CSC
(WO)

MEMORANDUM OPINION AND ORDER
On August 25, 2016, plaintiff’s counsel filed a motion for attorney’s fees pursuant
to 42 U.S.C. § 406(b) seeking $11,749.50 in attorney’s fees for 23 hours of work in this
court which represents 25 percent of the past due benefits awarded. (Docs. # 25 & 26).
On August 7, 2016, the plaintiff was awarded past due benefits, and the Social Security
Administration withheld $17,749.50 from his past due benefits for payment of attorney’s
fees. (Doc. # 25, Ex. A; Doc. # 26, Ex. A). Plaintiff’s counsel was authorized and awarded
$6,000.00 in attorney’s fees for work performed at the administrative level. Id. See also
42 U.S.C. § 406(a). The plaintiff’s counsel was previously awarded $4,232.00 in fees
under the Equal Access to Justice Act (“EAJA”). See Doc. # 22. Plaintiff’s counsel
represents to the court that he has refunded to the plaintiff the amount of fees previously
awarded to him under the EAJA. See Doc. # 26 at 2. The United States does not object

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

to an award of fees but “requests that the Court order Plaintiff’s counsel to return the lesser
of the two fee awards to Plaintiff.” (Doc. # 29 at 2).
The plaintiff entered into a contingency fee agreement with counsel in which the
plaintiff agreed to payment of attorney’s fees in the amount of 25 percent of any past due
benefits awarded to him. (Doc. # 26, Ex. B). On June 13, 2013, the plaintiff sought review
of the Commissioner’s adverse decision in this court. (Doc. # 1, Compl.). Pursuant to 28
U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties consented to entry of final judgment
by the United States Magistrate Judge. On May 30, 2014, the court remanded this case to
the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
(Docs. # 17 & 18).
The court must independently determine whether an award of attorney’s fees in the
amount of $11,749.50, which equates to an hourly rate of approximately $510.85 for 23
hours of work performed in this court, is reasonable in this case. In Grisbrecht v. Barnhart,
535 U.S. 789, 794 (2002), the Supreme Court examined the question of attorney’s fees in
conjunction with contingency fee agreements in Social Security disability cases.
Specifically, the Court held that Ҥ 406(b) does not displace contingent-fee agreements as
the primary means by which fees are set for successfully representing Social Security
benefits claims 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.” 535
U.S. at 807. The contingency fee agreement in this case does not exceed the 25 percent
2

ceiling established by § 406(b). However, it is not sufficient for the court to simply accept
25 percent of past due benefits as a reasonable attorney fee.
Courts that approach fee determinations by looking first to the contingent-fee
agreement, then testing for reasonableness, have appropriately reduced the
attorney’s recovery based on the character of the representation and the
results the representation achieved.
Gisbrecht, 535 U.S. at 808.
“Within the 25 percent boundary . . . the attorney for the successful claimant must
show that the fee sought is reasonable for the services rendered.” Id., at 807. The burden
is on plaintiff’s counsel to demonstrate the reasonableness of the requested fee. Id.
Counsel is seeking $11,749.50 in attorney’s fees for 23 hours of work over a three and a
half year period.2 While the hourly rate of the award would equal $510.85 is slightly high,
the court nonetheless concludes it is reasonable. The United States does not object to the
award, and the court’s judgment about reasonableness is informed by Gisbrecht’s
conclusion that Congress did not mean to “outlaw” lawful contingent fee agreements.
Counsel is experienced in representing Social Security claimants, and he has represented
Social Security claimants for over thirty-eight (38) years. (Doc. # 26, Ex. D). He regularly
practices in federal court. Id. Consequently, the court concludes that payment in the
amount of $11,749.50 which equals 25% of the past due benefits is reasonable under the
circumstances of this case.

2

Although the complaint was not filed in this court until June 13, 2013, plaintiff and counsel reached
their fee agreement in October 2010. See Doc. # 26, Ex. B.

3

Accordingly, it is
ORDERED and ADJUDGED that, pursuant to the 42 U.S.C. § 406(b), the petition
for attorney’s fees (doc. # 25) be and is hereby GRANTED, and the Commissioner shall
pay to the plaintiff’s attorney $11,749.50 of the amount previously withheld from the
plaintiff’s past due benefits. It is further
ORDERED that the plaintiff’s counsel refund to the plaintiff the amount of $4,232.00
in fees previously awarded under the Equal Access to Justice Act.
Done this 6th day of September, 2016.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

4