Jarrett v. Commissioner of Social Security
OPINION AND ORDER: Court GRANTS 40 Motion for Authorization of Attorney Fees pursuant to 42 U.S.C. § 406(b). The court AWARDS fees to plaintiff's attorney Joseph R. Wambach in the total amount of $11,984.25 as outlined. Signed by Judge Robert L Miller, Jr on 9/29/2017. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
NANCY A. BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL SECURITY,
CAUSE NO. 3:14-CV-1952 RLM
OPINION AND ORDER
Janeen Jarrett brought this action for judicial review after the
Commissioner of Social Security denied her application for disability insurance
benefits. The court vacated the Commissioner's decision and remanded the case
to the Social Security Administration for further proceedings. Ms. Jarrett
prevailed and was awarded $47,937.00 in past-due benefits. Ms. Jarrett’s
counsel, Joseph R. Wambach, has received $5,571.20 of the $6,154.50 the court
awarded him for the services he provided pursuant to the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d). Mr. Wambach’s motion for authorization of
attorney fees under 42 U.S.C. § 406(b) is now before the court.
An attorney who has successfully represented a claimant in federal court
may receive “a reasonable fee for such representation, not in excess of twenty-
Nancy A. Berryhill was automatically substituted as the defendant in this case when
she replaced Carolyn W. Colvin as the Acting Commissioner of Social Security pursuant
to Federal Rule of Civil Procedure 25(d).
five percent of the total past-due benefits to which the claimant is entitled by
reason of such judgment.” 42 U.S.C. § 406(b)(1)(A); Gisbrecht v. Barnhart, 535
U.S. 789, 792 (2002). While fees may be awarded under both the EAJA and
Section 406(b), “an EAJA award offsets an award under Section 406(b).”
Gisbrecht v. Barnhart, 535 U.S. at 796; see also Talbott v. Bowen, 832 F.2d 111,
112 (8th Cir. 1987) (“[I]f the award received under the EAJA . . . is less than the
25% contingent fee contract based upon back benefits, then claimant's counsel
may collect from the claimant the difference between the 25% award and the
award under the EAJA.”).
Mr. Wambach asks the court to authorize attorney fees in the amount of
$11,984.25, which represents twenty-five percent of Ms. Jarrett’s past-due
benefits and is within both the parameters of Section 406(b) and the parties'
contingent fee agreement. The government hasn't objected to Mr. Wambach’s
request. The court must now decide whether the attorney fees yielded by that
agreement are reasonable. Gisbrecht v. Barnhart, 535 U.S. at 809.
Mr. Wambach argues that the amount requested, $11,984.25, equates to
an effective rate of approximately $276.77 per hour. He arrives at that
calculation by dividing the amount requested by the 43.3 hours his firm spent
on this matter. But he notes that only 21.9 hours were worked by attorneys; the
other 21.4 hours represent the work of non-attorney staff. Courts have taken
different approaches in considering non-attorney work in Section 406(b) fee
awards. See Beach v. Berryhill, No. 14-CV-857-BBC, 2017 WL 3275546, at *2
(W.D. Wis. Aug. 1, 2017) (including non-attorney time when considering
reasonableness of fee award while noting that “it appears to be an open question
in this circuit whether paralegal time may be considered in assessing the
reasonableness of a fee request under § 406(b)”); Westlund v. Berryhill, No. 15CV-450-JDP, 2017 WL 2389724, at *2 (W.D. Wis. June 1, 2017) (“[t]he court
considers only attorney time when calculating the compensation rate, not
paralegal or ‘administrative’ time”); Acosta v. Comm'r of Soc. Sec., No. 14-10212,
2016 WL 8094540, at *8 (E.D. Mich. Nov. 17, 2016) (holding that a lesser rate
should be awarded for hours worked by non-attorneys); Santino v. Astrue, No.
2:06-CV-75-PRC, 2009 WL 1076143, at *4 (N.D. Ind. Apr. 20, 2009) (considering
the reasonableness of a fee award by calculating the effective rate both with and
without non-attorney hours).
The court need not answer the question of whether or how to consider
non-attorney hours to determine the reasonableness of Mr. Wambach’s fee
request. Even if the court disregards the 21.4 hours of non-attorney time
reported by Mr. Wambach, the effective rate of approximately $547.21 per hour
still falls within the range of what courts in this district have deemed reasonable.
See Hill v. Comm'r of Soc. Sec., No. 1:11-CV-00134-SLC, 2016 WL 2643360, at
*4 (N.D. Ind. May 10, 2016) (granting a fee request equating to an effective rate
of $810); Bianco v. Colvin, No. 3:14CV98, 2016 WL 1295926, at *3 (N.D. Ind.
Apr. 4, 2016) (granting a fee request equating to an effective rate of $825); Ittel
v. Colvin, No. 2:12-CV-096 JD, 2014 WL 4905638, at *2 (N.D. Ind. Sept. 30,
2014) (granting a fee request equating to an effective rate of $521); Timberlake
v. Colvin, No. 3:11-CV-10 RLM, 2014 WL 793366, at *1 (N.D. Ind. Feb. 26, 2014)
(granting a fee request equating to an effective rate of $696); Smith v. Astrue, No.
1:05-CV-00202, 2009 WL 35223, at *3 (N.D. Ind. Jan. 5, 2009) (granting a fee
request equating to an effective rate of $550). This fee is reasonable in light of
the result achieved in this case and the contingent nature of the recovery.
Ms. Jarrett’s application for social security disability benefits was denied
two separate times. After an administrative hearing resulted in a third denial of
Ms. Jarrett’s application, she retained Mr. Wambach as counsel. Under the
terms of their agreement, Ms. Jarrett agreed that Mr. Wambach could elect to
petition for up to 25 percent of all past due benefits in the event of a favorable
outcome. Following the court’s previous decision to remand to the agency, the
court awarded Mr. Wambach fees in the amount of $6,154.50 pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412, $5,571.20 of which Mr. Wambach
received. Fee awards may be made under both the EAJA and Section 406(b), but
the claimant's attorney must refund the amount of the smaller fee. Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002). Mr. Wambach has agreed that he will refund
the EAJA award of $5,571.20 he received to Ms. Jarrett.
Based on the foregoing, the motion for authorization of attorney fees
pursuant to 42 U.S.C. § 406(b) [Doc. No. 40] is GRANTED, and the court
AWARDS fees to plaintiff's attorney Joseph R. Wambach in the total amount of
$11,984.25 paid directly to Joseph R. Wambach of Keller and Keller, 2850 North
Meridian Street, Indianapolis, Indiana 46208. The Court further ORDERS
Attorney Wambach to refund Ms. Jarrett the sum of $5,571.20, which represents
the amount of EAJA fees already paid to Mr. Wambach and now credited to Ms.
September 29, 2017
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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