Derouen v. Social Security Administration

Filing 19

RULING granting 13 Motion for Attorney Fees. The Motion to Authorize and Fix Attorney Fee, as amended, is GRANTED. The Court awards fees in the amount of $5,300.00 within thirty (30) days of this Order. Signed by Magistrate Judge C Michael Hill on 02/04/2014. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
KIRK A. DEROUEN

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CIVIL ACTION NO. 11-0830

VERSUS

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JUDGE HAIK

COMMISSIONER OF
SOCIAL SECURITY

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MAGISTRATE JUDGE HILL

RULING ON MOTION TO AUTHORIZE AND FIX ATTORNEY FEE
Pending before the undersigned is the Motion to Authorize and Fix Attorney
Fee filed on December 5, 2013, by attorney Kenneth W. DeJean (“DeJean”), on
behalf of social security claimant, Kirk A. Derouen (“Derouen”). [rec. doc. 13].
Defendant, the Commissioner of the Social Security Administration
(“Commissioner”), filed a response on December 24, 2013. [rec. doc. 15]. DeJean
filed a Reply on January 6, 2014. [rec. doc. 18].
Background
On June 3, 2011, Derouen filed a Complaint for Judicial Review of Adverse
Determination with this Court, appealing the denial of his claim for social security
benefits. By Report and Recommendation dated July 12, 2012, the undersigned
recommended that the Commissioner’s decision be reversed, and that claimant be
awarded appropriate benefits as of his onset date, December 31, 2005. [rec. doc.

11]. On September 27, 2012, Judge Haik entered a Judgment adopting the Report
and Recommendation, reversing the Commissioner’s decision, and awarding
benefits from the onset date of December 31, 2005. [rec. doc. 12].
On December 5, 2013, DeJean filed the instant Motion to Authorize and Fix
Attorney Fee. [rec. doc. 13].
Anaylsis
By letter dated November 27, 2013, the Social Security Administration
advised DeJean that the sum of $24,869.50, which represented 25% of Derouen’s
past-due benefits, was being withheld for attorney fees. [rec. doc. 13, Exhibit 1].
On December 5, 2013, DeJean filed the instant motion for attorney fees, in which
he requested $24,869.50 in fees, which he claimed represented 25% of Derouen’s
past-due benefits. [rec. doc. 13].
In support of his motion, DeJean attached a Statement of Professional
Services Rendered from August 18, 2009, through September 17, 2013. [rec. doc.
13, Exhibit 2]. In the Statement, Dejean requested fees for 70.30 hours for work
performed at the administrative level, the district court level, and the
administrative level after this Court’s action.
The Commissioner of Social Security objected to Dejean’s failure to attach
his contingency fee agreement to the motion. Additionally, the Commissioner
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objected to DeJean’s claim for fees relating to work performed at the
administrative level, but not for the hours expended before this Court.
On January 6, 2014, DeJean filed a Reply brief, to which he attached a copy
of his contingency fee agreement. [rec. doc. 18, Exhibit 1]. The agreement
provides for an attorney fee “equal to the lesser amount of 25 percent of the pastdue benefits resulting from [Derouen’s] claim(s) or $5,300.00 (or such higher
amount as prescribed by the Commissioner of Social Security pursuant to Section
206(a)(2)(A) of the Social Security Act).” DeJean acknowledges that $5,300.00 is
the “lesser” amount, because 25% of the past due benefits which this Court
awarded to Derouen amounts to $24,869.50.
DeJean agrees with the Commissioner that 42 U.S.C. § 406(b) governs his
attorney fee application. Section 406(b) provides, in pertinent part, as follows:
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 . . .
42 U.S.C. § 406(b)(1)(A).
Section 406(b) governs the award and collection of fees by attorneys for the
representation of claimants in court. Murkeldove v. Astrue, 635 F.3d 784, 788 (5th
Cir. 2011). This statute does not displace contingent-fee agreements within the

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statutory ceiling; instead, it instructs courts to review for reasonableness fees
yielded by those agreements. Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S. Ct.
1817, 1828, 152 L. Ed. 2d 996 (2002). As an aid to the court’s assessment of the
reasonableness of the fee yielded by the fee agreement, the court may require the
claimant’s attorney to submit a record of the hours spent representing the claimant
and a statement of the lawyer’s normal hourly billing charge for non-contingentfee cases. 535 U.S. at 808, 122 S.Ct. at 1828.
In the Reply, DeJean amended his request to omit the fees performed at the
administrative level, and now claims 40.9 hours at the rate of $200.00 to $250.00
per hour for work performed at the district court level from June 2, 2011 through
September 27, 2012. He asserts that dividing the sum of $5,300.00 for 40.9 hours
equates to an award of $129.58 per hour, which is considerably below DeJean’s
customary hourly fee for non-contingency fee work. Accordingly, he argues that
an attorney fee award of $5,300.00 is highly reasonable under Gisbrecht.
To determine reasonable rates, a court considers the attorneys' regular rates
as well as prevailing rates in the community. Louisiana Power & Light
Co.Louisiana Power & Light Company v. Kellstrom, 50 F.3d 319, 328 (5th Cir.
1995), 50 F.3d at 328. A reasonable rate is the market rate. Conner v. Mid South
Insurance Agency, Inc., 943 F.Supp. 663, 667 (W.D. La 1996).
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The Court has reviewed the amended application, and finds that the amount
of time expended is reasonable. Additionally, I find that the prevailing rate for
attorneys in this area with DeJean’s experience supports the hourly rate claimed.
Accordingly, the Motion to Authorize and Fix Attorney Fee, as amended, is
GRANTED. The Court awards fees in the amount of $5,300.00 within thirty
(30) days of this Order.
Signed February 4, 2014, at Lafayette, Louisiana.

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