FITZPATRICK v. COLVIN

Filing 33

ORDER granting Plaintiff's 31 Motion for Attorney Fees. Plaintiff's counsel Joseph R. Wambach is entitled to a fee award of $18,615.25 pursuant to 42 U.S.C. § 406(b) and the Commissioner shall release those funds to him. Upon receipt of these funds, Mr.Wambach shall refund to Mr. Fitzgerald the $2,324.00 he has received pursuant to the Equal Access to Justice Act. Signed by Judge William T. Lawrence on 10/30/2017. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL D. FITZPATRICK,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration, 1
Defendant.

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) Cause No. 1:15-cv-1865-WTL-MJD
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ENTRY ON MOTION FOR ATTORNEY FEES
After this case was remanded to the Commissioner for further proceedings, Plaintiff
Michael D. Fitzpatrick received a fully favorable decision and was awarded disability insurance
benefits, including a back pay award of $74,461.00. Plaintiff’s counsel now requests an award of
attorney fees pursuant to 42 U.S.C. § 406(b) in the amount of $18,615.25 which, consistent with
the agreement between counsel and Mr. Fitzpatrick, is 25% of his back pay award. As is her
right, the Commissioner has filed a response to the fee petition; she points out that given the fact
that counsel’s firm spent 6.4 attorney hours and 11.4 non-attorney staff hours on Mr.
Fitzpatrick’s appeal before this Court, the fee award sought would correspond to an implied
hourly rate somewhere between $1,045 per hour (counting non-attorney time as equal to attorney
time) and $2,908 per hour (counting solely attorney time).
The question before the Court is whether $18,615.25 is a reasonable attorney fee in this

1Pursuant

to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill automatically
became the Defendant in this case when she succeeded Carolyn Colvin as the Acting
Commissioner of Social Security on January 23, 2017.

case. 42 U.S.C. § 406(b)(1)(a) (“Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by an attorney, the court may
determine and allow as part of its judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by
reason of such judgment . . . .”); McGuire v. Sullivan, 873 F.2d 974, 981 (7th Cir. 1989) (“[T]he
court should consider the reasonableness of the contingency percentage to make sure the attorney
does not receive fees which are out of proportion to the services performed, the risk of loss and
the other relevant considerations.”). At first blush, an award of over $1,000 per hour for this type
of case might seem unreasonable. However, the fact is that Plaintiff’s counsel handled this case
in a very efficient manner, making a clear, concise and targeted argument that maximized the
Plaintiff’s chance of success of receiving an order of remand from this Court and ultimately an
award of benefits from the Commissioner. Further, while there is obviously some risk of loss in
virtually any case, in the Court’s experience it is particularly difficult to predict with any
certainty how a case will be handled by the Commissioner, especially at the ALJ level. Given
this fact, and also considering the need to encourage high quality representation of those seeking
disability benefits, the Court finds that the fee award requested by Plaintiff’s counsel is this case
is reasonable, and the motion is GRANTED.
Plaintiff’s counsel Joseph R. Wambach is entitled to a fee award of $18,615.25 pursuant
to 42 U.S.C. § 406(b) and the Commissioner shall release those funds to him. Upon receipt of
these funds, Mr. Wambach shall refund to Mr. Fitzgerald the $2,324.00 he has received pursuant
to the Equal Access to Justice Act.

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SO ORDERED: 10/30/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication

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