Foster v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION AND ORDER GRANTING 13 MOTION for Award of Attorney's Fees in the amount of $8500.47 as set out herein. Signed by Judge Virginia Emerson Hopkins on 5/31/2016. (JLC)

FILED
2016 May-31 PM 02:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES LOREN FOSTER,

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, United States Social
Security Administration,
Defendant.

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) Case No.: 12-CV-4038-VEH
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MEMORANDUM OPINION AND ORDER
Kenneth D. Hampton, attorney for Plaintiff James Loren Foster, has moved for an
award of attorney’s fees under 42 U.S.C. § 406(b) in the amount of $8,500.47. He has
reached this figure by subtracting $6,000, the amount that the Commissioner granted for
administrative fees, from $14,500.47, which was 25% of the claimant’s past benefits.
The Commissioner does not oppose the motion. The court has undertaken its duty to
independently consider whether the proposed fee award is reasonable and concludes that
it is. The motion is due to be GRANTED.
Subparagraph 406(b)(1)(A) provides that “[w]henever a court renders a judgment
favorable to a [represented] claimant . . .the court may determine and allow . . . a

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reasonable [attorney’s fee], not in excess of 25 percent of the total of the past-due
benefits.” Where the claimant and his attorney have executed a contingent-fee agreement,
the Supreme Court has interpreted subsection 406(b) as requiring district courts to
conduct a two-step analysis. See Gisbrecht v. Barnhart, 535 U.S. 789 (2002). First
comes the simple step of calculating whether the requested award falls “within the 25
percent limit.” Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).
If so, the agreement is presumptively reasonable. In step two, the court is required to
consider whether “the fee sought is [actually] reasonable for the services rendered,”
Gisbrecht, 535 U.S. at 807, and, if not, the presumption is overcome. Where the
presumption is overcome, the court may award a fee that is reasonable in its judgment.
See id.
This standard is skeletal, see id. at 809 (Scalia, J., dissenting), but the courts of
appeals have put some meat on Gisbrecht’s bones.1 The lodestar figure, while not
dispositive, may be compared against the contingent fee award. Id. at 808. “[C]ourts may
reduce the requested fee if the representation has been substandard, if the attorney has
been responsible for delay, or if the benefits are large in comparison to the amount of

1

Given the year in which Gisbrecht was decided (2002), it may be more temporally
accurate to say that the Supreme Court stripped the flesh from the standards set forth by the courts
of appeals. Either way, Gisbrecht only really purported to resolve a circuit split over whether
contingency agreements or the lodestar were the appropriate means of determining attorney’s fees
under the Social Security Act.
2

time the attorney spent on the case.” Jackson, 601 F.3d at 1271 (citation omitted).
Substandard representation, among other things, includes a complaint “submitted on
boilerplate pleadings,” where “no issues of material fact are present,” and where “no legal
research is apparent.” Rodriquez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989).
The reasonable fee reflects an enhancement, compared to the market rate for
similar work, based on the risk of non-payment, because “payment for an attorney in a
social security case is inevitably uncertain.” Wells v. Sullivan, 907 F.2d 367, 370–71
(2d Cir. 1990). On the other hand, the quality of counsel and hours expended are weak
factors for assessing an award’s reasonableness; they “bear little if any relationship to the
results [i.e., award amount] achieved.” Rodriquez, 865 F.2d at 747. But the award must
not be so disproportionate to the work performed that it gives the perception that counsel
has won the Social Security lottery. McGuire v. Sullivan, 873 F.2d 974, 981 (7th Cir.
1989) (prohibiting a “windfall”); cf. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542
(2010) (fee shifting statutes do not exist to enrich counsel); BMW of North America,
Inc. v. Gore, 646 So. 2d 619, 631 (Ala. 1994) (Houston, J., concurring specially), rev’d
on other grounds, 517 U.S. 559 (warning of the perception of the right to trial by jury
as “Alabama’s lottery”).
Certain policy considerations should also inform the court’s judgment. Section
406 was enacted “to encourage effective legal representation of claimants by insuring

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lawyers that they will receive reasonable fees.” Dawson v. Finch, 425 F.2d 1192, 1195
(5th Cir. 1970).2 Contingent fees, in particular, “provide[] a critical incentive for able
attorneys to practice in the social security field.” Wells, 907 F.2d at 371. At the same
time, the court’s review is the only bulwark for impecunious and disabled claimants, see
Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1276 (11th Cir. 2006), against the
gutting of their statutory entitlement by the “specialized Social-Security bar [that]
charges uniform contingent fees (the statutory maximum of 25%), which are presumably
presented . . . on a take-it-or-leave-it-basis.” Gisbrecht, 535 U.S. at 812 (Scalia, J.,
dissenting).
Applying the foregoing principles here, the court finds a valid contingent fee
agreement set at or below the statutory maximum contingency. (See doc. 13-1 at 12).
Proceeding to step two, Hampton recorded his hours as follows:
Date

Activity

Time

5/20/09

Initial Interview with Client, Initial file opening letter to client

03

11/25/12

Received decision from the Appeals Council that affirms decision of
ALJ. Drafted Summons, Complaint, SSAN letter, and civil cover sheet.

1.3

2

This is binding authority in the Eleventh Circuit. See Bonner v. City of Prichard, Ala.,
661 F.2d 1206 (11th Cir. 1981) (decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981 are binding on all federal courts in the Eleventh Circuit).
3

This was included in the administrative fee petition request
4

12/6/12

Filed the Summons and Complaint with the Clerk of Court in Hunstville.
Filing fee was $350.00. Service Mailed. Letter to the Client with a copy
of the Summons, Complaint, and Civil Cover sheet and explaining the
appeal process from this point forward.

.5

3/6/13

Received the Answer, Transcript, and Briefing Letter Electronically.
Downloaded the documents and reviewed the answer and briefing letter.

.9

4/13/13

In depth review of the file

6

4/14–15/13

Partial drafting of the Plaintiff’s brief

10

4/19/13

Completed drafting the plaintiff’s Brief. Converted brief to a PDF format
and electronically filed the Brief with the Court. Letter to the client with
a copy of the Brief and explaining the remainder of the Briefing
Schedule. Converted Brief to WordPerfect format. Email to Judge
Hopkins Chambers with a copy of the WordPerfect format Brief.

4.6

6/1/13

Reviewed the Commissioner’s Brief. Drafted the Plaintiff’s Reply
Memorandum

5

6/2/13

Converted the Plaintiff’s Reply brief to both PDF and WordPerfect
Formats. Electronically filed the PDF version with the Court using the
ECF systems. E-mail to Judge Hopkins Chambers with the WordPerfect
version. Letter to the Client with a copy of the Reply Brief and explaining
that the briefing is concluded and that the case is submitted to Judge
Hopkins for decision.

1.3

9/24/13

Explained to the client that I do not know when the Judge will make a
decision, but I do not expect it at least until November, 2013.

.3

2/17/14

Client called and I explained that we do not have a decision issued as of
today, but that I expect a decision to be issued at anytime since the last
brief was filed in June, 2013.

.3

3/28/14

Received a decision from the United States District Court that reverses
the original decision and sends it back for a new hearing on the new
evidence submitted to the Appeals Council. The decision Grants an
Extension to file a Fee Petition until after the approval of any
administrative fee. Letter to the client with a copy of the Final Order and
Memorandum Opinion and requesting that he advise us of any new or
additional medical treatment.

.7

2/16/16

Received an authorization to Charge $6000.00 for the work at the
Administrative Level.

.1

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TOTAL

31.0

Thirty-one hours to complete a social security appeal is a reasonable number,
especially where, as here, the plaintiff filed a reply brief. As for the lodestar, $8500.47
divided over 31 hours comes out to about $275 per hour. Although the court is of the
opinion that $250 per hour is a more accurate reflection of the market rate in this district
for this kind of work, the required enhancement for the uncertainty of recovery makes
$275 per hour well within the realm of reasonableness. Additionally, the plaintiff’s
filings were above average quality compared to the social security filings in this district.
Accordingly, the motion is GRANTED. It is ORDERED that attorney’s fees in
the amount of $8500.47 be awarded to Kenneth D. Hampton.
DONE this 31st day of May, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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