Payne v. Astrue

Filing 29

ORDER granting 27 MOTION for Attorney Fees PURSUANT TO 42 U.S.C. §406(b)(1) filed by Lyle E Payne. Signed by Judge David R. Herndon on 6/22/15. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LYLE E. PAYNE,
Plaintiff,
vs.

Civil No.

12-cv-969-DRH

CAROLYN W. COLVIN,
Defendant.
ORDER for ATTORNEY’S FEES
HERNDON, District Judge:
Before the Court is plaintiff’s Motion for Approval of Attorney’s Fees
Pursuant to 42 U.S.C. A. Section 406(b). (Doc. 27). Defendant has not filed a
response, and the time for doing so has now expired. The Court deems the failure to
respond to be an admission of the merits of the motion. SDIL-LR 7.1. 1
After this Court reversed the decision denying plaintiff’s application for
benefits and remanded pursuant to sentence four of 42 U.S.C. §405(g), the
Commissioner granted plaintiff’s application. The contract between plaintiff and his
attorney provides for a contingent fee equal to 25% of all past-due benefits awarded.
The Commissioner awarded past-due benefits and withheld 25% of the past due
amount ($10,564.48) pending court approval of the fee. See Doc. 27, Ex. 2, pp. 2 &
11.
42 U.S.C. §406(b)(1)(A) provides that the Court may allow a “reasonable fee,”
While the Commissioner has no direct stake in the §406(b)(1) fee request, she “plays a part in the fee
determination resembling that of a trustee for the claimants.” Gisbrecht v. Barnhart, 535 U.S. 789, 798, n.6
(2002).
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not in excess of 25% of the total of the past-due benefits. However, if the Court
approves such a fee, “no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.” Ibid. In practical terms, this
means that, in the event of an award under §406(b)(1), counsel must refund any
amount previously awarded the Equal Access to Justice Act, 28 U.S.C.
§2412(d)(1)(B). Here, the amount awarded under the EAJA was used to pay
plaintiff’s pre-existing debt to the United States. Doc. 27, Ex. 1, ¶5 & Ex. 2, p. 4.
Therefore, there will be no EAJA offset.
The Supreme Court has held that § 406(b)(1) controls, but does not displace,
contingent fee agreement in social security cases:
Most plausibly read, we conclude, § 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.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
Having reviewed the circumstances presented here, including the time and
effort expended by counsel, the excellent result received by plaintiff, the amount of
the past-due benefits and the value of the projected benefits over plaintiff’s expected
life span, the Court concludes that 25% of the past-due amount is a reasonable fee
here. The Court notes that the Commissioner has not opposed counsel’s request.
Wherefore, Plaintiff’s Motion for Approval of Attorney’s Fees Pursuant to 42
U.S.C. A. Section 406(b) (Doc. 27) is GRANTED. The Court awards Charles E.
Binder, counsel for plaintiff, a fee of $10,564.48, representing 25% of the past-due
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benefits.
IT IS SO ORDERED.
Signed this 22nd day of June, 2015.

Digitally signed by
David R. Herndon
Date: 2015.06.22
15:08:40 -05'00'
United States District Judge

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