Burge v. Astrue

Filing 46

ORDER granting 43 Motion for Attorney Fees and finding as moot 42 Motion for Attorney Fees: For the reasons thoroughly explained herein, Plaintiff's Motion for Approval of Attorneys' Fees Pursuant to 42 U.S.C. 406(b) (Doc. 43) is GRANTED. The Court awards Barry A. Schultz, counsel for Plaintiff, a fee of $29,441.50. The prior motion for attorneys' fees (Doc. 42) is rendered moot. See Order for details. Signed by Chief Judge Michael J. Reagan on 12/24/14. (soh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES T. BURGE,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

Case No. 12-cv-0987-MJR-CJP

ORDER ON MOTION FOR ATTORNEYS’ FEES
REAGAN, Chief Judge:
Now Before the Court is Plaintiff’s Motion for Approval of Attorneys’ Fees,
pursuant to 42 U.S.C. 406(b) (Doc. 43).

On December 22, 2014, Defendant filed a

response stating that she has no objection (Doc. 45).
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 totaling $117,766.00 and withheld 25% of the past due
amount (i.e., $29,441.50) pending court approval of the fee (see Doc. 42, Ex. 1 & 2).
42 U.S.C. 406(b)(1)(A) provides that the court may allow a “reasonable fee,” 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

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except as provided in this paragraph.” Id. 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) (“EAJA”). Here, the
amount awarded under the EAJA was used to pay Plaintiff’s pre-existing debt to the
United States (Doc. 43, ¶7). Therefore, there will be no EAJA offset.
The United States 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 in the instant case, 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 filed a response indicating that
she does not oppose counsel’s request. 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, 535 U.S. at 798, n. 6.
The Court further notes that Plaintiff was represented by a different attorney, Joni

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Bailey, at the administrative level, and that Ms. Bailey has petitioned for a fee award
pursuant to 42 U.S.C. 406(a). Present counsel represents to the Court that he will offset
any amount awarded to Ms. Bailey for her work at the administrative level so that no
more than 25% of Plaintiff’s past-due benefits goes to attorneys’ fees.
Wherefore, Plaintiff’s Motion for Approval of Attorneys’ Fees Pursuant to 42
U.S.C. 406(b) (Doc. 43) is GRANTED. The Court awards Barry A. Schultz, counsel for
Plaintiff, a fee of $29,441.50 -- representing 25% of the past-due benefits.
IT IS SO ORDERED.
DATE December 14, 2014.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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