Hinkley v. Astrue

Filing 33

ORDER granting in part and denying in part 28 Motion for Attorney Fees and awards $11,725.00 to the Law Offices of Harry J. Binder and Charles E. Binder, P.C. Signed by Judge B. Avant Edenfield on 1/30/13. (wwp)

S

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MARK F. HINKLEY,
Plaintiff,
V

4: 1O-cv-126

.

MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,
Defendant.
ORDER
I. INTRODUCTION
Before the Court is Mark Hinkley's
("Hinkley") Motion for Attorney's Fees
Pursuant to 42 U.S.C. § 406(b)(1). ECF No.
28. Hinkley's attorneys seek court approval
of an award of fees totaling $25,836.86, to be
paid from the grant of retroactive benefits to
Hinkley. ECF No. 29 at 3. Although well
within the statutory limit for attorney's fees,
the Court finds such an award unreasonable
under the circumstances. The Court
A WARDS $11,725 for the following reasons.
II. BACKGROUND
Hinkley filed a claim for Social Security
Disability Benefits on March 16, 2004
alleging that he suffered from post-traumatic
stress disorder and bi-polar disorder and has
been "unable to engage in any employment"
since March 1, 2003. ECF No. I at 2. The
Commissioner denied the claim and the
Appeals Council affirmed.
Id
Hinkley
appealed to this Court, which remanded to the
Commissioner for further proceedings. Id.;
ECF Nos. 21; 22. As a prevailing party,
Hinkley then petitioned this Court for

attorney's fees under the Equal Access to
Justice Act ("EAJA"), 28 U.S.C. § 2412(d).
ECF No. 23. The Court granted EAJA fees in
the amount of $5,736.86. ECF No. 26.
On remand, the Commissioner approved
Hinkley's claim and awarded retroactive
benefits totaling $169,006.80.' See ECF Nos.
32 at 2; 28-2 at 6. Hinkley's attorney then
filed the instant motion for fees pursuant to 42
U.S.C. § 406(b)(1), requesting $25,836.86 for
33.5 hours of work despite a fee agreement
allowing him to request up to 25% of past due
benefits. ECF Nos. 29 at 3; 24-3. Hinkley's
attorney avers that he will refund the previous
EAJA award to Hinkley as required by law
should the Court award fees under §
406(b)(1). Id.; Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002) (noting that "[flee
awards may be made under both [the EAJA
and § 406(b)(1)J, but the claimant's attorney
must refund to the claimant the amount of the
smaller fee.") (internal quotations and
alterations omitted).
III. ANALYSIS
Pursuant to . . . § 406(b), the Court
may award a successful claimant's
counsel attorney's fees for work[]
performed before the Court in a
"reasonable" amount, not to exceed
twenty-five percent (25%) of the total
past due benefits awarded to the
claimant. These fees are awarded from
the past due benefits awarded to the
claimant and are withheld from the
claimant by the Commissioner.
Hinkley's Notice of Award, ECF No. 28-2, does not
explicitly state the award amount. It does, however,
state that the Commissioner withheld 25% of the
award, or $42,251.70, in order to pay Hinkley's
attorneys. Id at 8. The Court multiplied that amount
by four to arrive at $169,006.80.

Coppeti v. Barnhart, 242 F. Supp. 2d 1380,
1382 (S.D. Ga. 2002); see 42 U.S.C. §
406(b)( 1).
"However, [a] fee pursuant to a
contingency contract is not per se reasonable."
Id (internal quotations omitted). Although §
406(b) does not displace contingency fee
agreements between claimants and their
counsel, courts must always "independently
assess the reasonableness of [a contingency
agreement's] terms." Gisbrecht, 535 U.S. at
808 (quoting McGuire v. Sullivan, 873 F.2d
974, 983 (7th Cir. 1989)). And "[t]he best
indicator of the reasonableness of a
contingency fee in a social security case is the
contingency percentage actually negotiated
between the attorney and client." Coppett,
242 F. Supp. 2d at 1383 (internal quotations
omitted).
Unreasonable fees, by contrast, often are
marked by fraud or overreaching;
unreasonable delay by the attorney in order to
increase the retroactive benefits due the
claimant; or fees so large as to produce a
windfall for the attorney. Id. Benefits "large
in comparison to the amount of time counsel
spent on the case" also suggest "a downward
adjustment is . . . in order." Gisbrecht, 535
U.S. at 808. Regardless, it is the claimant's
attorney who "bears the burden of
persua[ding]" a court of the fee's
reasonableness. Id at 807 n.17.
At the outset, the Court notes that the fees
Hinkley's attorneys request fall well within
the 25% limit imposed by § 406(b). Compare
ECF No. 29 at 3 (requesting a fee of
$25 ,836.862), with ECF No. 28-2 at 8 (stating
2

Hinkley's attorneys incorrectly calculate the net fee
award requested as $20,100 by subtracting the EAJA
fee award of $5,736.86 from the $25,836.86 § 406(b)

25% of past due benefits to be $42,251.70).
Hinkley's fee agreement with his attorneys
also conforms to that limit. See ECF No. 24-3
(stating that any § 406(b) fees awarded will
not exceed 25% of back due benefits).
Finally, the fee agreement does not appear to
be the product of overreaching, delay, or
fraud.
The Commissioner suggests the requested
fee is unreasonable because of its size in
relation to the time spent before the district
court. See ECF No. 32 at 3. He points the
Court to Thomas v. Astrue, No. 5:06-cv-6,
2010 WL 339787 (M.D. Ga. Jan 21, 2010), as
an example of a an hourly rate that constitutes
an unreasonable windfall. In Thomas, the
claimant's attorney sought $10,625.84 for
17.4 hours of work before the district court.
Id. at *3 That $610 per hour rate constituted
a windfall, the court said, in large part because
the attorney "spent little time on the case in
comparison to the amount of past-due benefits
Id.
obtained by a different attorney."
Ultimately the court reduced the effective
hourly rate to $500 and awarded $8700. Id.
Unlike the attorneys in Thomas, Hinkley's
attorneys have represented him for many
years, through several administrative
proceedings, and before this Court. See ECF
Nos. 32; 15 at 1. They are the attorneys
responsible for obtaining his award and they
are the attorneys who waded through the more
than 1000 pages of medical records in
award requested. See ECF No. 29 at 3. As the
Commissioner correctly notes, Hinkley's attorneys
have already received the EAJA award of $5,736.86.
ECF No. 32 at 3. If the Court awards $25,836.86 under
§ 406(b), Hinkley's attorneys will have a total of
$31,573.72. After the required refund of the EAJA
award to Hinkley, the attorneys therefore net
$25,836.86, not $20,100. Id Nevertheless, whether
$20,100 or $25,836.86, the net award falls well within
25% of the total past due benefits awarded Hinkley.

hour worked. Although not dispositive of the
requested award's reasonableness, this
disparity strongly suggests the impropriety of
See
granting the full amount requested.
Gisbrecht, 535 U.S. at 808 ("If the benefits
[recovered] are large in comparison to the
amount of time counsel spent on the case, a
downward adjustment is. . . in order.").

presenting Hinkley's case at the administrative
level. See, e.g., ECF Nos. 8 to 8-18.
But work on the front of end of this case,
before the Commissioner, cannot be rewarded
with a § 406(b) fee. Such an award is to
compensate for work done before this Court,
not during the administrative process. 3 See 42
U.S.C. §406(b)(1)(A) ("Whenever a court
renders a judgment favorable to a claimant...
who was represented before the court by an
attorney, the court may determine and allow..
a reasonable fee for such representation.
.") (emphasis added). And before this Court,
Hinidey's attorneys have performed 33.5
hours of relatively straightforward work—
drafting a boilerplate complaint, a merits brief,
and two extremely short attorney's fees
briefs—given their extensive involvement in
this case since its inception. See ECF No. 242.

Hinkley's attorneys did attempt to justify
their request for $25,836.86. See id. at 807
n. 17. They note that (1) "there is no
suggestion of fraud or overreaching[;]" (2)
"[c]ounsel did not delay this matter and
achieved success in reversing the
Commissioner's decision[;]" and (3) that the
requested award is less than 25% of the pastdue benefits awarded Hinkley. ECF No. 29 at
3.
These factors—with the exception of the
award request coming in under 25%, which
merely makes the request statutorily eligible
for consideration—all, at a minimum,
demonstrate that Hinkley's attorneys
conducted themselves as exemplary advocates
for their client. The Court cannot dispute that.
And it cannot reduce the award based on the
nonexistence of these factors.

Particularly when compared to the benefits
obtained, the time Hinkley's attorneys spent
on work before this Court cannot justify the
award requested. See Gisbrechi, 535 U.S. at
808. In Thomas, for example, where the court
reduced the award requested, the money
recovered for every hour the attorney worked
came to $3,661 per hour. See 2010 WL
339787. In Kennedy v. Astrue, where this
Court granted the requested award, the same
ratio came to $1373 recovered per hour
worked. No. 4:06-cv-147, 2009 WL 2555912
(S.D. Ga. Aug. 18, 2009). Here, by contrast,
the ratio amounts to $5,045 recovered per

But Hinkley's attorneys never addressed
the amount of time spent on work before this
Court as compared to the benefits recovered.
Id. at 3-4. Because of that, they failed to
sufficiently justify why 33.5 hours spent
drafting a two page complaint, a thirty-three
page merits brief, a three page EAJA fees
brief, and a two page § 406(b) fees brief—all
based in large part on leg work performed
before the Commissioner—warrant what
amounts to $771 per hour. Simply not
engaging in fraud or delay, and being good
attorneys is not alone enough.

Hinkley's attorneys, as they note in the proposed
order accompanying the instant motion, may separately
request fees under § 406(a) for administrative work
done on this case. See ECF No. 28-I. The efforts that
led to efficient and competent work before this Court
need not go uncompensated. But as noted above, an
award under § 406(b) is not the proper vehicle for such
compensation.

3

DENIES
Accordingly, the Court
Hinkley's attorneys' request for $25,836.86.
Instead, the Court will GRANT a §406(b)
award of $11,725. That amounts to $350 per
hour, a rate commensurate with the high
quality of service provided, but not so
exorbitant as to unreasonably deprive Hinkley
of a portion of his benefits award. This award
fully accounts for the lack of fraud and delay,
the experience of Hinkley's attorneys, and the
undeniable success they had in achieving a
benefit award for Hinkley. It also, however,
properly accounts for the fact that most of the
effort and time spent on this case came before
the Commissioner, not this Court.
IV. CONCLUSION
The Court GRANTS IN PART Hinkley's
motion for attorney's fees and A WARDS
$11,725 to the Law Offices of Harry J. Binder
and Charles E. Binder, P.C. Counsel is
ORDERED to refund the EAJA fee of
$5,736.86 to Mr. Hinkley.

3

Thisc

day of January 2013.

SOUTHERN DISTRICT OF GEORGIA

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