McDonnell v. Colvin
MEMORANDUM OPINION AND ORDER entered GRANTING 23 Motion for Attorney Fees, without objection by the Government. It is ORDERED that Plaintiff's attorney be AWARDED a fee in the amount of $13,072.75 for his services before this Court. It is FURTHER ORDERED that Lassiter pay Plaintiff $3,901.15, the sum representing the EAJA fee previously awarded, as further set out.. Signed by Magistrate Judge Bert W. Milling, Jr on 12/7/2016. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
OWEN E. McDONNELL, JR.
CAROLYN W. COLVIN,
Commission of Social Security,
CIVIL ACTION 14-0141-M
MEMORANDUM OPINION AND ORDER
This action is before the Court on Plaintiff’s Attorney’s
Petition for Authorization of Attorney Fees Pursuant to 42
U.S.C. § 406(b) (Doc. 23) and Defendant’s Response (Doc. 24).
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 $13,072.75 for
his services before this Court, and that Lassiter pay to
Plaintiff the sum of $3,901.15, the sum representing the fee
previously awarded to Lassiter pursuant to the Equal Access to
Justice Act (hereinafter EAJA).
Plaintiff hired Byron A. Lassiter on February 2, 2011 to
pursue his claims for disability insurance benefits (see Doc.
23, p. 1).
On February 19, 2014, Plaintiff executed a written
contingent fee agreement through which Lassiter would receive
twenty-five percent of past-due benefits paid to Plaintiff (Doc.
23, Exhibit D).
For the past approximately five years and ten months,
Counsel has prosecuted Plaintiff’s claims before both the Social
Security Administration (hereinafter SSA) and this Court,
commencing a civil action here on March 25, 2014 (Doc. 1).
October 8, 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 March 25, 2016, finding Plaintiff had been disabled since
March 1, 2002 (see Doc. 23, ¶ 5; see also Exhibit B).
On April 20, 2016, Plaintiff’s Counsel received a Notice of
Change of Benefits from the SSA, stating that the amount of
$19,072.75, representing twenty-five percent of Plaintiff’s
past-due benefits, had been withheld for payment of authorized
attorney fees (Doc. 23, Exhibit B, p. 1).
Lassiter has received
$6,000.00 in administrative attorney fees and now requests a fee
in the amount of $13,072.75 for his services before this Court;
together, these sums equal twenty-five percent of Plaintiff’s
On November 22, 2016, Lassiter filed the pending Motion,
requesting approval of a fee in the amount of $13,072.75 (Doc.
Since filing this action on March 25, 2014, Counsel has
spent a total of 20.5 hours representing McDonnell before this
Court without compensation (Doc. 23, Exhibit A).
provided no objection to the requested fee (Doc. 24).1
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,
Though the Government has not objected, it has noted that the
requested fee amounts to approximately $637.70 per hour.
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) that 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
Gisbrecht, 535 U.S. at 796.
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 the specific facts that
the district courts are to consider when reviewing fees yielded
by a contingent-fee agreement.
It did, however, point to the
following factors which may be considered in reviewing for
(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 benefits.
See Gisbrecht, 535 U.S. at 808.
A decision from the Second Circuit Court of Appeals 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.”
Wells v. Sullivan, 907 F.2d 367,
372 (2nd Cir. 1990).
After reviewing the fee petition and accompanying
documents, the Defendant’s response, and the guidance provided
by Gisbrecht and the opinions cited above, the Court finds that
Lassiter has diligently represented Plaintiff since March 2014
in this Court and has been successful in obtaining past-due
benefits for Plaintiff.
There is 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 contingent-fee
Plaintiff has signed a fee agreement in which he
agrees to the fee being requested by Lassiter.
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.
While the requested fee is large, it cannot
be considered a windfall or unreasonable.
The Court finds that
the requested fee of $13,072.75 is reasonable for the services
rendered before this Court.
By Memorandum Opinion and Order and Judgment entered on
February 11, 2015 (Docs. 21-22), the Commissioner was ordered to
pay Plaintiff’s Counsel $3,901.15 in fees pursuant to EAJA.
the instant Motion, Lassiter requests the Court to include in
its order a provision that he pay Plaintiff $3,901.15, the sum
representing the fee awarded under EAJA and which is currently
held in trust for Plaintiff’s benefit (Doc. 23).
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 Motion for Attorney’s Fees be
GRANTED and that Plaintiff’s attorney be AWARDED a fee in the
amount of $13,072.75 for his services before this Court.
FURTHER ORDERED that Lassiter pay Plaintiff $3,901.15, the sum
representing the EAJA fee previously awarded.
DONE this 7th day of December, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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