Moore v. Colvin (CONSENT)

Filing 33

MEMORANDUM OPINION AND ORDER: it is ORDERED, pursuant to 42 USC 406(b), that counsel's 24 Motion for Award of Attorney Fees is GRANTED to the extent that the Commissioner is DIRECTED to pay Plf's attorney $20,000 from Plf's w ithheld past-due benefits for the 20.1 hours of work performed before the court; further ORDERED that counsel is DIRECTED to take the steps necessary to ensure that Plf is credited or refunded $3,875.82, the amount of fees previously awarded to Plf pursuant to the Equal Access to Justice Act. Signed by Honorable Judge Susan Russ Walker on 11/18/2019. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JOHN FRANK MOORE,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No.: 3:16-cv-408-SRW

MEMORANDUM OPINION AND ORDER
On September 12, 2017, this court reversed the Commissioner’s decision and
remanded the case for further proceedings. Docs. 17, 18. Following remand, the
Commissioner issued a fully favorable decision. On August 5, 2019, the Commissioner
issued an Award Notice stating that, “up to 25 percent of [Plaintiff’s] past due benefits can
be used toward the payment of [attorney] fees. Thus, we are withholding $28,253.75 from
your benefits, until the authorized amount of your attorney’s fees is determined.” Doc. 242 at 2. Therefore, Plaintiff was awarded retroactive benefits in the amount of $113,015.00.
Doc. 24 at 2 ¶ 3.1 This court previously awarded to Plaintiff fees in the amount of $3,875.82
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Doc.
23.
Pending before the court is Plaintiff’s Attorney’s Motion for Award of Attorney
Fees Under 42 U.S.C. §406(b) (Doc. 24) in which counsel seeks authorization to charge

1

$28,253.75 x 4 = $113,015.00.
1

her client $24,377.93 out of his past due Social Security insurance benefits for 20.1 hours2
of work performed before this court. The Commissioner opposes the Motion “because the
amount requested is unreasonable in light of the hours spent on the case.” Doc. 28 at 1.
The statute provides, in relevant part:
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 . . . .
42 U.S.C. §406(b)(1)(A). The contingency fee agreement between Plaintiff and his
attorney provides, in part, “If Attorney prevails before the Federal Court, and if Claimant
is subsequently awarded benefits by the Social Security Administration (“SSA”), Claimant
agrees to pay Attorney a fee for Federal Court work equal to 25% of past-due benefits.”
Doc. 24-1 at 1.
In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court examined the
issue of attorney’s fees sought in connection with contingency fee agreements in Social
Security disability cases. The Court held that Ҥ406(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.” Id. at 807. The burden is on the attorney for the claimant to “show that
the fee sought is reasonable for the services rendered.” Id. Gisbrecht instructs that the
court is to review the fee resulting from a contingent fee agreement for reasonableness,

2

See Timesheet, Doc. 19-1 at 2.
2

based on the facts of the particular case before it. Id. at 808 (“Courts that approach fee
determinations by looking first to the contingent-fee agreement, then testing it for
reasonableness, have appropriately reduced the attorney’s recovery based on the character
of the representation and the results the representative achieved.”). The Supreme Court
observed that if the “benefits are large in comparison to the amount of time counsel spent
on the case, a downward adjustment is . . . in order.” Id.
Here, the Commissioner argues that a total fee of $28,253.75 for 20.1 hours of work
before this court would result in a windfall to Plaintiff’s counsel, but does not otherwise
argue that the fee is unmerited. Doc. 28 at 2. Plaintiff’s counsel contends that the fee is
neither unreasonable nor a windfall because taking this case posed a risk to her.
Specifically, Plaintiff’s counsel states that Plaintiff’s prior attorney was unwilling to pursue
the case any further and that Plaintiff’s insured status for Title II benefits had expired on
December 31, 2011, so if she “had not risked taking this case to District Court, [Plaintiff]
would have never had the opportunity for back benefits, ongoing Title II benefits, or
Medicare prior to full retirement age.” Doc. 31 at 3. Furthermore, Plaintiff’s counsel points
out that her practice revolves around Social Security disability cases so “all fees received
by [her] are contingency based”; that she is a seasoned practitioner, having regularly
represented Social Security claimants since 2009 in this court; and that she has made a
three-year commitment to her client thus far. Id.
In balancing Gisbrecht’s guidance and conclusion that Congress intended to
“contain” rather than “outlaw” lawful contingent fee agreements,3 along with the issues

3

Gisbrecht, 535 U.S. at 805.
3

presented in this appeal, the 20.1 hours counsel spent compared to the fee she seeks, the
increased possibility of loss that the case posed, and the results obtained for Plaintiff, the
court finds that a downward adjustment of the fee from $24,377.93 to $20,000 renders an
award that largely preserves the benefit of counsel’s contingent fee agreement with
Plaintiff and compensates her reasonably for her work. Accordingly, it is
ORDERED, pursuant to 42 U.S.C. § 406(b), that counsel’s Motion (Doc. 24) is
GRANTED to the extent that the Commissioner is DIRECTED to pay Plaintiff’s attorney
$20,000 from Plaintiff’s withheld past-due benefits for the 20.1 hours of work performed
before the court.
It is further ORDERED that counsel is DIRECTED to take the steps necessary to
ensure that Plaintiff is credited or refunded $3,875.82, the amount of fees previously
awarded to Plaintiff pursuant to the Equal Access to Justice Act.
DONE, on this the 18th day of November, 2019.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

4