Countess v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER For the reasons explained within, the court finds the motion is due to be GRANTED IN PART and DENIED IN PART. The court GRANTS the request for an award of fees, but reduces the amount to $6,020; The court reminds Plaintiffs counsel of the obligation to refund $2,966.31 to the Plaintiff as a dollar-for-dollar offset of the previously awarded EAJA fee. Signed by Judge Karon O Bowdre on 8/8/13. (SAC )
2013 Aug-08 AM 10:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social Security,
) CIVIL ACTION NO. 5:08-CV-0691-JFG
MEMORANDUM OPINION AND ORDER
This matter is before the court upon petition of Plaintiff’s counsel for approval of
an attorney's fee under 42 U.S.C. 406(b) for representation of the Plaintiff before this court. (Doc.
16.) The court has reviewed the terms of the fee agreement, the record of attorney services
rendered, the information in the motion for attorneys fees, and the docket sheet for this case. For
the following reasons, the court finds the motion is due to be GRANTED IN PART and DENIED
IN PART. The court GRANTS the request for an award of fees, but reduces the amount as
In light of this court’s decision reversing and remanding the case to the
Commissioner in favor of the Plaintiff, the Plaintiff’s attorney moves this court for an award of
fees under 42 U.S.C. 406(b). Plaintiff’s attorney requests $17,740.25 in attorney’s fees, reflecting
25% of the social security benefits awarded (less $10,000 approved by the Social Security
Administration for services performed at the administrative level) – the maximum fee the court
can award under 42 U.S.C. 406(b). Plaintiff’s attorney attaches records reflecting 17.20 hours
spent representing the Plaintiff before the court. The court notes it previously awarded an Equal
Access to Justice Act (EAJA) fee in this case in the amount of $2,966.31 to the Plaintiff on
February 4, 2009. (Doc. 15.)
The Supreme Court, in Gisbrecht v. Barnhart, 535 U.S. 789 (2002), held that a
25% contingency fee agreement under 42 U.S.C. 406(b) is presumptively reasonable, but subject
to “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 Court also stated that a downward
adjustment may be necessary if “the benefits are large in comparison to the amount of time
counsel spent on the case.” Id. at 808 (citing Rodriquez v. Bowen, 865 F.2d 739, 747 (6th Cir.
1989)). In Hayes v. Secretary, 923 F.2d 418 (6th Cir. 1990), the Sixth Circuit added guidance to
district courts in determining whether the requested fee represents a windfall under Rodriquez.
The court held that
under Rodriquez, a windfall can never occur when, in a case where a contingent
fee contract exists, the hypothetical hourly rate determined by dividing the number
of hours worked for the claimant into the amount of the fee permitted under the
contract is less than twice the standard rate for such work in the relevant market.
Id. at 422 (footnote omitted). The court reasoned that “a multiplier of 2 is appropriate as a floor
in light of indications that social security attorneys are successful in approximately 50% of the
cases they file in the courts.” Id. The Eleventh Circuit has also observed that “courts may reduce
the requested fee . . . if the benefits are large in comparison to the amount of time the attorney
spent on the case.” Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (citing
Gisbrecht, 535 U.S. at 808).
Applying these standards to the facts of this case, the court finds that an
unreasonable windfall does exist. In this case, the attorney’s fees requested reflect a de facto fee
of approximately $1,031 per hour. Based on its own knowledge and experience awarding fees in
social security cases, the court finds that $175 per hour represents the high end of a “reasonable”
rate in the local market for similar cases. The de facto $1,031 hourly rate in this case is more than
twice the standard market rate. To assure a reasonable result in this particular case and to provide
for some consistency in attorney fees awards, the court reduces the de facto hourly rate to $350
per hour. Therefore, the court finds that the maximum total fee that would represent a reasonable
amount in this case is $6,020. Accordingly, the court GRANTS the motion to authorize an award
of attorney fees, but reduces the amount requested to $6,020. The court reminds Plaintiff’s
counsel of the obligation to refund $2,966.31 to the Plaintiff as a dollar-for-dollar offset of the
previously awarded EAJA fee.
DONE and ORDERED this 8th day of August, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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