Hanson v. Colvin
MEMORANDUM OPINION AND ORDER entered GRANTING without objection, 30 Plaintiff's Motion for Attorney Fees. It is ORDERED that Plaintiff's attorney, Byron A. Lassiter, be AWARDED a fee of $4,077.25 for his services before this Court, a nd that Lassiter pay to Plaintiff the sum of $3,585.41, the sum representing the fee previously awarded to Lassister pursuant to the Equal Access to Justice Act, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 10/14/2016. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ANTHONY L. HANSON,
MICHAEL J. ASTRUE,
Commission of Social Security,
CIVIL ACTION 13-0443-M
MEMORANDUM OPINION AND ORDER
This action is before the Court on Plaintiff’s Attorney’s
Petition for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc.
30) and Defendant’s Response (Doc. 31).
After consideration of
all pertinent materials in the file, it is ORDERED, without
objection by the Government, that Plaintiff’s Attorney’s
Petition be GRANTED, that Plaintiff’s attorney, Byron A.
Lassiter, be AWARDED a fee of $4,077.25 for his services before
this Court, and that Lassiter pay to Plaintiff the sum of
$3,585.41, the sum representing the fee previously awarded to
Lassiter pursuant to the Equal Access to Justice Act
Plaintiff, Anthony L. Hanson, hired Byron A. Lassiter on
September 29, 2010 to pursue his claims for disability insurance
benefits (see Doc. 30, ¶ 1).
On September 5, 2013, Plaintiff
executed a written contingent fee agreement through which
Lassiter would receive twenty-five percent of past-due benefits
paid to Plaintiff (Doc. 30, Exhibit E).
For the past six years, Counsel has prosecuted Plaintiff’s
claims before the Social Security Administration and this Court,
commencing a civil action here on September 9, 2013 (Doc. 1).
On June 23, 2014, the undersigned entered a Memorandum Opinion
and Order and Judgment in which the decision of the
Administrative Law Judge (hereinafter ALJ) was reversed and this
action remanded for further administrative proceedings (Docs.
On remand, the ALJ rendered a fully favorable decision
on November 10, 2015, finding Plaintiff entitled to disability
benefits (see Doc. 30, ¶ 5).
On February 3, 2016, Plaintiff’s Counsel received a Notice
of Award from the SSA on Hanson’s behalf, stating that the
amount of $10,077.25, representing twenty-five percent of
Plaintiff’s past-due benefits, had been withheld for payment of
authorized attorney fees (Doc. 30, Exhibit B).
received $6,000.00 in administrative attorney fees and now
requests a fee in the amount of $4,077.25 for his services
before this Court; together, these sums equal twenty-five
percent of Plaintiff’s past-due benefits (Doc. 30, Exhibit D).
On September 21, 2016, Lassiter filed the pending Motion,
requesting approval of a fee in the amount of $4,077.25 (Doc.
Since filing this action on September 9, 2013, Counsel has
spent a total of 19.2 hours representing Hanson before this
Court without compensation (Doc. 30, Exhibit 1).
provided no objection to the requested fee (Doc. 31).
The Social Security Act provides that when a court renders
a favorable judgment to a Social Security claimant “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).
is payable “out of, and not in addition to, the amount of [the]
Thus, the Act “provides for contingent
fees to be charged to the client, with the amount to be set by
the district court subject to a statutory maximum.”
Heckler, 765 F.2d 1562, 1566 (11th Cir. 1985) (citations omitted)
(emphasis in original).
The Supreme Court, in Gisbrecht v. Barnhart, 535 U.S. 789,
805-07 (2002), concluded that Congress designed § 406(b) to
monitor fee agreements between Social Security benefits
claimants and their counsel.
Specifically, the Court held that
“§ 406(b) does not displace contingent-fee agreements as the
primary means by which fees are set for successfully
representing Social Security benefits claimants 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 only boundaries
made by Congress are that the fee cannot exceed twenty-five
percent of the total disbursement and that the “fee sought [be]
reasonable for the services rendered.”
The fee provided for in § 406(b) is in addition to that
provided in § 406(a) which states that the Commissioner may
award attorney’s fees to a successful claimant’s attorney for
work performed before the SSA.
Fees awarded pursuant to §
406(a) and § 406(b) are awarded in addition to any attorney’s
fee a claimant’s attorney may receive pursuant to EAJA, 28
U.S.C. § 2412, if the Commissioner’s position before the Court
was not “substantially justified.”
Gisbrecht, 535 U.S. at 796.
In order to avoid a double recovery, a claimant’s attorney who
is awarded attorney’s fees under both § 406(b) and EAJA must
refund the lesser amount to his or her client.
The Gisbrecht Court did not set out specific facts that the
district courts are to consider when reviewing fees yielded by a
contingent-fee agreement, but it did point to the following
factors which may be considered in reviewing for reasonableness:
(1) the character of representation; (2) the result achieved by
the attorney; (3) any delay caused by the attorney; (4) the
amount of benefits relative to the time spent on the action such
that the attorney receives a windfall; (5) fraud or overreaching
in making the agreement; and (6) a requirement that the
requested fee does not exceed twenty-five percent of past-due
See Gisbrecht, 535 U.S. at 808.
A Second Circuit
decision further noted that “[s]hould the district court find
that the agreement provides an unreasonable fee under the
circumstances, the court may reduce the fee provided it states
the reasons for and the amounts of the deductions.”
Sullivan, 907 F.2d 367, 372 (2nd Cir. 1990).
After reviewing the fee petition and attached documents,
Defendant’s response, and the guidance provided by Gisbrecht and
the opinions cited above, the Court finds Lassiter has
diligently represented Hanson since 2013 in this Court and has
successfully obtained past-due benefits for Plaintiff.
no evidence that Lassiter contributed to any undue delay in this
action, either before the Commissioner or before this Court, nor
evidence of any fraud or overreaching in procuring or making the
Plaintiff has signed a fee agreement
in which he agrees to the fee being requested by his Attorney.
The total fee requested does not exceed twenty-five percent of
past-due benefits and comports with Plaintiff’s contingent-fee
agreement with his attorney.
The requested fee cannot be
considered a windfall or unreasonable.
The Court finds that the
requested fee of $4,077.25 is reasonable for the services
rendered before this Court.
By Memorandum Opinion and Order and Judgment entered on
October 28, 2014 (Docs. 28-29), the Commissioner was ordered to
pay Plaintiff’s Counsel $3,585.41 in fees pursuant to EAJA.
the instant Motion, Lassiter acknowledges that the EAJA fee of
$3,585.41, currently held in trust for Hanson’s benefit, needs
to be paid to Plaintiff (Doc. 30, ¶ 14).
An attorney’s fee
awarded under § 406(b) is subject to a dollar-for-dollar offset
by the attorney’s previous fee awarded under EAJA.
Therefore, it is ORDERED, without objection from Defendant,
that Plaintiff’s Attorney’s Petition for Attorney’s Fees be
GRANTED and that Plaintiff’s Attorney be AWARDED a fee in the
amount of $4,077.25 for his services before this Court.
FURTHER ORDERED that Lassiter pay Plaintiff $3,585.41, the sum
representing the EAJA fee previously awarded.
DONE this 14th day of October, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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