Adams v. Colvin
Filing
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ORDER granting in part 22 Motion for Attorney Fees. The Commissioner is order to pay Plaintiff's counsel $16,405.50 out of Plaintiff's past-due benefits. Signed by Magistrate Judge Brian K. Epps on 6/2/17. (cmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
SHAWN HEATH ADAMS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,1
Defendant.
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CV 114-104
ORDER
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The Court GRANTS IN PART Plaintiff’s motion for attorney’s fees (doc. no. 22),
and ORDERS the Commissioner to pay Plaintiff’s counsel $16,405.50 out of Plaintiff’s
past-due benefits pursuant to 42 U.S.C. § 406(b). Importantly, the Court herein approves a
total fee award under § 406(b) of $20,500.00. However, the Court has deducted from this
total the prior fee award of $4,094.50 made pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”), which Plaintiff’s counsel shall retain. See Jackson v. Comm’r of
Soc. Sec., 601 F.3d 1268, 1274 (11th Cir. 2010) (preferring courts deduct EAJA award from
§ 406(b) award rather than plaintiff’s counsel having to issue refund of EAJA award); see
also Paltan v. Comm’r of Soc. Sec., 518 F. App’x 673, 674 (11th Cir. 2013).
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The Court takes judicial notice that on January 20, 2017, Nancy A. Berryhill became
the Acting Commissioner of the Social Security Administration. Pursuant to Fed. R. Civ. P.
25(d), the Court DIRECTS the Clerk of Court to substitute Nancy A. Berryhill as
Defendant.
I.
BACKGROUND
On June 9, 2015, the Court granted a reversal and remand pursuant to sentence four of
42 U.S.C. § 405(g), and awarded Plaintiff $4,094.50 in attorney’s fees, $400.00 in costs, and
$23.00 in expenses under the EAJA. (Doc. nos. 16, 19, 21.) On January 16, 2017, the
Commissioner awarded Plaintiff $145,234.00 in past-due benefits. (Doc. no. 22-3, pp. 1-6.)
On March 13, 2017, Plaintiff filed the instant motion seeking attorney’s fees of $36,308.00
pursuant to a contingency fee contract for twenty-five percent of Plaintiff’s past-due benefits.
(Doc. no. 22.) The Commissioner opposes the motion, arguing it is untimely and would
result in a windfall to counsel. (Doc. no. 24.)
II.
DISCUSSION
A.
The Motion is Timely.
Federal Rule of Civil Procedure 54(d)(2) requires a motion for attorney’s fees under §
406(b) to be filed within fourteen days “after entry of judgment.” Bergen v. Comm’r of Soc.
Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). However, it is unclear exactly when the clock
commences. In Biltch v. Astrue, 261 F. App’x 241, 242 n.1 (11th Cir. 2008), the Eleventh
Circuit recommended district courts fashion a “general order or a local rule permitting
district-wide application of a universal process for seeking fees under these unique
circumstances.” In fashioning such a general order or local rule, district courts should “keep
in mind Congress’s intent behind § 406(b), to encourage attorneys to represent Social
Security claimants.” Id.
The Middle District of Georgia followed this recommendation by requiring fee
motions to be filed “no later than thirty (30) days after the date of the Social Security letter
sent to the plaintiff’s counsel of record.” LR 9.4, MDGa; see also Brown v. Astrue, No. CV
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411-152, 2014 WL 4928880, at *2 (S.D. Ga. Sept. 30, 2014). This Court has no such rule,
but has traditionally provided plaintiff’s counsel thirty days from the date of the Social
Security letter to file for § 406(b) fees. See Jones v. Astrue, CV 310-038, doc. no. 12, p. 9,
adopted by doc. no. 14 (S.D. Ga. May 25, 2011) (granting plaintiff’s request for thirty-day
deadline after Social Security letter to apply for § 406(b) fees); Curry v. Astrue, CV 309-068,
doc. no. 17, pp. 14-15, adopted by doc. no. 19 (S.D. Ga. Nov. 18, 2010) (same).
Here, the Social Security Administration issued its Notice of Award on January 16,
2017, and Plaintiff filed the instant motion on March 13, 2017. (Doc. no. 22, pp. 2-4.)
Plaintiff did not request, and the Court did not include in the reversal judgment, a statement
specifying a deadline for seeking attorney’s fees under § 406(b). (See doc. nos. 13, 15, 16.)
In light of Congress’s intent to encourage attorneys to represent Social Security claimants,
and in the absence of a local rule, standing order, or statement setting a specific deadline, this
Court finds the motion timely. See Brown, 2014 WL 4928880 at *2-3 (finding fee petition
timely in absence of local rule, standing order, or statement setting specific deadline).
B.
Reasonableness of the Requested Fee
Attorney’s fee awards in Social Security cases are governed by two statutes, 42
U.S.C. § 406(b), and 28 U.S.C. § 2412 of the EAJA. Jackson, 601 F.3d at 1271. Under 28
U.S.C. § 2412 of the EAJA, counsel may petition for a fee award based on an hourly rate.
Alternatively, counsel may seek a reasonable contingency fee pursuant to 42 U.S.C. § 406(b)
not in excess of “25 percent of the total of the past-due benefits to which the claimant is
entitled.” Bergen, 454 F.3d at 1276. The fee is payable “out of, and not in addition to, the
amount of the past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 795 (2002). Counsel
can obtain a § 406(b) award even after receipt of EAJA fees, so long as the EAJA payment is
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deducted or refunded to avoid double recovery. See Pub. L. 99-80, § 3, 99 Stat. 186 (1985);
Gisbrecht, 535 U.S. at 796; Brown, 2014 WL 4928880 at *1. Under § 406(b), an attorney
must seek the court’s approval even if there is a client agreement. See Gisbrecht, 535 U.S. at
807.
Here, pursuant to the terms of the contingent-fee agreement, Plaintiff’s counsel seeks
$36,308.00, an amount equal to 25% of the past benefits awarded, and in support submits a
statement showing he spent twenty-four hours representing Plaintiff on appeal. (Doc. no. 224; doc. no. 22-1, pp. 1, 5.) The Commissioner argues the requested award is an unreasonable
windfall of more than $1,500.00 per hour. (See doc. no. 24, pp. 3-4.)
Where, as here, there is a valid contingent-fee agreement that does not exceed the
statutory cap of 25% of past due benefits awarded, the Court should enforce the agreement so
long as “the fee sought is reasonable for the services rendered.” Gisbrecht, 535 U.S. at 807.
“[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 time the attorney spent on the case.” Jackson, 601 F.3d at 1271 (citing Gisbrecht,
535 U.S. 789).
The Court acknowledges Plaintiff’s counsel’s extensive experience in
disability law, as well as the high quality of representation in this case. (See doc. no. 25, pp.
3-4.) Furthermore, there is no evidence or suggestion Plaintiff’s counsel is responsible for
any delay. (See doc. no. 24, pp. 3-4.)
An award may be unreasonable if it is disproportionally large in comparison to the
time spent on the case, such that the contingency fee would result in a windfall to claimant’s
attorney.
See Jackson, 601 F.3d at 1271.
However, the “best indicator of the
‘reasonableness’ of a contingency fee is the contingency percentage actually negotiated.”
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Coppett v. Barnhart, 242 F. Supp. 2d 1380, 1383 (S.D. Ga. Sept. 11, 2002).
Here, the total award requested is disproportionate within the contemplation of
Gisbrecht and would result in a windfall. See 535 U.S. at 791. An award of $36,308.00 for
twenty-four hours of work equals $1,512.83 per hour.
This is not reasonable under
Gisbrecht. See Bell v. Astrue, CV 109-059, doc. no. 25 (S.D. Ga. May 22, 2009) (finding
award of $18,089.72 for 13.5 hours of representation, or $1,339.97 per hour constituted
windfall); Laprade v. Astrue, No. CIV. A. 2:05CV667-SRW, 2008 WL 4735169, at *1 (M.D.
Ala. Oct. 20, 2008) (finding award of $15,600.00 for 15 hours of representation, or $1,040.00
per hour constituted windfall). Thus, a downward adjustment is warranted.
The Court finds a total award of $20,400.00 for twenty-four hours of representation,
with an effective hourly rate of $850.00, is generous and reasonable. See Yarnevic v. Apfel,
359 F. Supp. 2d 1363, 1365 (N.D. Ga. 2005) (finding $21,057.75 in attorney’s fees resulting
in a $643.00 hourly rate was reasonable); Hosley v. Colvin, No. 5:09-CV-379 (MTT), 2016
WL 7394532, at *2 (M.D. Ga. Dec. 21, 2016) (finding $20,000.00 for 23.40 hours of
representation, or $854.70 per hour was reasonable); Andrews v. Colvin, No. 5:12-CV-275
MTT, 2014 WL 4287150, at *1 (M.D. Ga. Aug. 29, 2014) (finding $23,177.75 for 32 hours
of representation, or $724.31 per hour was reasonable); Mobley v. Colvin, No. 1:12-CV-64
WLS, 2014 WL 1320100, at *1 (M.D. Ga. Mar. 31, 2014) (finding fee amounting to $874.00
per hour was reasonable); Savage v. Astrue, No. CIV. A. 5:06CV196CAR, 2010 WL
2012032, at *3 (M.D. Ga. May 20, 2010) (finding $27,310.00 in attorney’s fees for 33.8
hours of representation, or $807.99 per hour reasonable).
Because Plaintiff’s counsel was previously awarded $4,094.50 in EAJA fees, the
Court ORDERS the Commissioner to pay Plaintiff’s counsel $16,405.50 out of Plaintiff’s
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past-due benefits, which represents a total fee award of $20,500.00 since Plaintiff’s counsel
shall retain rather than refund the EAJA award. See Jackson, 601 F.3d at 1271-72.
III.
CONCLUSION
The Court GRANTS IN PART Plaintiff’s motion for attorney’s fees (doc. no. 22),
and ORDERS the Commissioner to pay Plaintiff’s counsel $16,405.50 out of Plaintiff’s
past-due benefits.
SO ORDERED this 2nd day of June, 2017, at Augusta, Georgia.
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