SIRACO v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
29
DECISION AND ORDER DECLINING TO ADOPT THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - declining to adopt 24 Report and Recommendations ; granting 20 Motion for Attorney Fees. By JUDGE D. BROCK HORNBY. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERTHA SIRACO,
PLAINTIFF
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT
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NO. 2:09-CV-384-DBH
DECISION AND ORDER DECLINING TO ADOPT THE
RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
This dispute over the amount of fees a law firm can recover from its
client in a Social Security Disability appeal purports to be over whether any
rate enhancement is permissible for paralegal billings.
dispute’s focus is misdirected.
I conclude that the
Here the law firm and the claimant had a
percentage contingent fee agreement between them, a type of fee arrangement
expressly permitted by the Supreme Court.
This reviewing court is still
required to assess the resulting fee amount to see if circumstances make it
unreasonable.1 (It is the Commissioner who is challenging the fee amount, not
the client.)
But the answer to whether the resulting fee amount is
“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. . . . ” 42
U.S.C. § 406(b)(1)(A).
1
unreasonable does not come down to the propriety of a multiplier for paralegal
services.
BACKGROUND
In this case, the Commissioner denied disability benefits to the claimant.
Wanting to challenge the denial, she engaged a law firm.
She signed a
contingent fee agreement providing for attorney fees in the amount of 25% of
her recovery, the maximum amount permitted by statute, and no fee at all if
she did not recover monetary benefits. Contingent Fee Agreement (Docket Item
20-2); 42 U.S.C. § 406(b)(1)(A). In representing her from 2007 until May 28,
2010, the law firm accrued 25.45 hours of paralegal work and 4.7 hours of
lawyer work in the quest for past due benefits. Att’y Billing Record (Docket
Item 20-3).
The firm’s work was successful and it obtained for her a total
award of $45,466.50.2 She will continue to receive benefits into the future, but
2 Plaintiff Bertha Siraco filed for disability and Disability Insurance benefits in June 2007. Ms.
Siraco claimed she became disabled on June 30, 2002 due to hearing loss, vertigo/dizziness,
degenerative disc and joint disease and obesity. Ms. Siraco’s claim was denied by a federal
reviewing official, an Administrative Law Judge (“ALJ”) and the Decision Review Board
(“Board”). The ALJ found that the plaintiff’s degenerative disc disease and hearing loss were
medically determinable impairments, but concluded that they were nonsevere. Accordingly,
the ALJ ended the disability determination at step 2 of the sequential evaluation process. In
reviewing the ALJ’s decision, the Board disagreed, finding that the plaintiff’s degenerative disc
disease and degenerative joint disease, obesity, and right ankle impairment were severe
impairments. However, the Board further found that the plaintiff’s hearing loss and varicose
veins were nonsevere. Notably, the Board based the non-severity finding with respect to the
plaintiff’s bilateral hearing impairment on the vocational expert’s hearing testimony that Ms.
Siraco’s hearing loss “would not impact most jobs” within the occupational base defined by the
ALJ’s residual finctional capacity hypothetical. The Board also found that, as of June 30,
2002, the plaintiff did not have an impairment or combination of impairments that met or
medically equaled a Listing. Rather, the Board determined that the plaintiff retained the
residual functional capacity to perform a limited range of light work. Although the Board found
that the plaintiff could not perform her past relevant work, it determined at Step 5 that she
could perform other work that existed in significant numbers in the national economy.
Ms. Siraco sought review from this court of the Board’s final administrative decision.
After the plaintiff filed her itemized statement of errors, the Commissioner moved to reverse the
decision of the Board and to remand the case to the ALJ. Itemized Statement of Errors (Docket
Item 9); Def.’s. Amended Unopposed Mot. for Entry of J. under Sentence Four of 42 U.S.C.
(continued next page)
2
those future amounts are not counted in the contingency fee calculation.
Twenty-five percent of her award of past due benefits is $11,366.62. Pl.’s Mot.
for Attorney Fees n.1 (Docket Item 20). Since the law firm has already
recovered $6,000 in fees for its work on her behalf before the Social Security
Administration, the current motion in this court under section 406(b) seeks the
remaining $5,366.62 of the percentage contingency for the work done here.3 Id.
at 1.
The
Commissioner
has
opposed
the
motion,
with
the
following
explanation:
When the $5,366.62 in requested § 406(b) fees is divided by
the 30.15 total hours expended by Plaintiff’s Counsel’s
office, an amount of $177.99/hour results. At first blush,
this appears reasonable as it almost mirrors the hourly rate
he received for attorney work under EAJA.
Despite the apparent reasonableness of Plaintiff’s
Counsel’s request, the Commissioner has significant
concerns. Specifically, of the 30.15 hours performed before
this Court, only 4.7 hours were performed by an attorney.
Thus, Plaintiff’s Counsel is actually seeking 406(b) fees for
actual attorney work at a rate of $1141.83/hour ($5,366.62
divided by 4.7 hours). This is unreasonable.
The Commissioner, however, is not ignorant to the
fact that Plaintiff’s Counsel’s staff expended 25.45 hours of
paralegal work in this case.
Unfortunately, the
Commissioner is unable to find any precedential guidance
from this Court—or the First Circuit—regarding how
paralegal work should be compensated under § 406(b), if at
all. Further convoluting this query is the fact that the
courts that have addressed this issue are in disagreement
regarding whether or not time expended by a paralegal is
§ 405(g). I granted that request, directing the ALJ to conduct the analysis past steps 2 and 3 of
the sequential evaluation, to reassess Ms. Siraco’s residual functional capacity as of June 30,
2002. Order (Docket Item 13). Thereafter, the ALJ awarded Ms. Siraco past due benefits.
3 The Magistrate Judge previously awarded the plaintiff $2,735.80 against the Commissioner
for attorney fees under the Equal Access to Justice Act, and that was paid to the law firm. The
law firm will have to pay that amount to its client if it recovers more than that on this motion.
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Thus, she will actually pay less than 25%.
3
separately considered or whether it is expected to be
included in overhead. At bottom, the Commissioner is
unable to agree that the award Plaintiff’s counsel seeks is
reasonable as he is unsure whether or not this Court is of
the belief that paralegal time is compensable under
§ 406(b)—and if it is, at what rate.
Def.’s Response to Pl.’s Counsel’s Mot. for an Award of § 406(b) Fees at 4-5
(citations omitted) (Docket Item 21).
In the end, the Commissioner
recommended paying the law firm for attorney hours based upon 3 times the
hourly rate permitted under the EAJA (4.7 hours times 3 times $175.75) for a
total of $2,478.00 and the paralegal time for 25.45 hours at the rate of $75 per
hour (also the hourly rate permitted under the EAJA I learned at oral
argument) for a total of $1909, yielding a grand total fee award of $4,387.00
rather than the percentage contingency fee of $5,366.62.
ANALYSIS
In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court was
explicit that contingent fees up to a maximum of 25% are permitted, not
disfavored, in social security cases. Gisbrecht recognized contingent fees “as
the primary means by which fees are set for successfully representing Social
Security benefits claimants in court.” Id. at 807 (emphasis added). Within the
25% limit, however, the lawyer “must show that the fee sought is reasonable
for the services rendered.”
Id.
Gisbrecht approved “looking first to the
contingent-fee agreement, then testing it for reasonableness.” Id. at 808. The
Court mentioned the appropriateness of fee reductions “based on the character
of the representation and the results the representative achieved,” and based
4
on attorney-caused delay that drove up the size of the award for accumulating
benefits. Id. It also observed:
If the benefits are large in comparison to the amount of
time counsel spent on the case, a downward adjustment is
similarly in order. In this regard, the court may require the
claimant’s attorney to submit, not as a basis for satellite
litigation, but as an aid to the court’s assessment of the
reasonableness of the fee yielded by the fee agreement, a
record of the hours spent representing the claimant and a
statement of the lawyer’s normal hourly billing charge for
noncontingent-fee cases.”4
Id. As Justice Scalia predicted in his Gisbrecht dissent5, courts have struggled
over how to apply Gisbrecht’s Janus-faced approach. Many courts have found
it difficult to leave behind the lodestar analysis that they are accustomed to use
The Magistrate Judge has criticized this law firm for referring to an hourly rate that tribunals
have “approved” because the affidavits do not establish what hourly rate the law firm actually
bills to clients. See Andrews v. Astrue, Civil No. 08-135-JAW, 2011 WL 124302 (D. Me.
January 13, 2011); O’Brien v. Astrue, Civil No. 07-34-DBH, (Docket Item 21 at 5) (D. Me.
February 15, 2010); Quimby v. Astrue, Civil No. 04-33-JAW, 2010 WL 817464 *5 (D. Me.
March 4, 2010). As a result, the Magistrate Judge has used the EAJA approved rate (now
$175.75), clearly not a “normal hourly billing charge for noncontingent-fee cases” in
Gisbrecht’s terms, and probably well under any reasonable market rate. At oral argument, I
learned that this law firm has no normal hourly billing charge for noncontingent fee cases
because it does only benefits work and uses only contingent fee agreements, or recovers fees
under the EAJA. At oral argument, counsel told me that the last hourly rate billed to a private
client was fifteen years ago. Nevertheless, the firm should be able to furnish some persuasive
information to try to meet the Gisbrecht standard—for example, the hourly rate that area
lawyers of comparable experience bill for work that is at least somewhat analogous.
5 Scalia, J., dissenting:
I do not know what the judges of our district courts and courts of
appeals are to make of today’s opinion. I have no idea what the
trial judge is to do if he finds the fee produced by the
(“presumptively reasonable”) contingent-fee agreement to be 25%
above the lodestar amount; or 40%; or 65%. . . . While today’s
opinion gets this case out of our “in” box, it does nothing
whatever to subject these fees to anything approximating a
uniform rule of law. That is, I think the inevitable consequence of
trying to combine the incompatible. The Court tells the judge to
commence his analysis with the contingent-fee agreement, but
then to adjust the figure that agreement produces on the basis of
factors (most notably, the actual time spent multiplied by a
reasonably hourly rate) that are, in a sense, the precise antithesis
of the contingent-fee agreement, since it was the very purpose of
that agreement to eliminate them from the fee calculation.
4
5
under fee-shifting statutes. (Under the lodestar, courts determine reasonable
rates and the reasonable amount of time for a case, then consider adjustments
based upon a number of other factors.
Coutin v. Young & Rubicam Puerto
Rico, Inc., 124 F.3d 331, 337 (1st Cir. 1997).)
Thus, some courts have
developed rules of thumb in social security disability cases to determine when
a contingent fee becomes unreasonable. Typically the rules of thumb measure
the contingent fee against the basic lodestar starting point of hours times rates,
identifying a multiplier (e.g., 2 or 3 times) below which the fee will not be
deemed unreasonable.
But two circuit courts of appeal recently have found it necessary to
remind trial courts that after Gisbrecht they must not focus their primary
attention on the lodestar analysis in reviewing fees. In Crawford v. Astrue, 586
F.3d 1142, 1148 (9th Cir. 2009) (quoting Gisbrecht, 535 U.S. at 793), for
example, the Ninth Circuit reiterated Gisbrecht’s instruction that a district
court “must respect ‘the primacy of lawful attorney-client fee agreements.’”
Crawford stated: “Performance of that duty must begin, under Gisbrecht, with
the fee agreement, and the question is whether the amount need be reduced,
not whether the lodestar amount should be enhanced.” Id. at 1149 (emphasis
added).
By beginning with the lodestar calculation, the district
courts plainly failed to respect the “primacy of lawful
attorney-client fee agreements.”
Lawful attorney-client
contingent fee agreements do not result in “enhancements’
that modify a lodestar fee that might otherwise be too low.
Rather, they are the “primary means” by which fees are
determined. The district courts’ methodology in these cases
under-emphasizes
the
contingent-fee
agreements,
6
contravening the Supreme Court’s instruction that the
agreements be the primary means for determining the fee.
Id. at 1150 (citation omitted). In Jeter v. Astrue, 622 F.3d 371 (5th Cir. 2010),
the Fifth Circuit was somewhat more tolerant of district courts looking at the
lodestar calculation, but only under clear restrictions:
We find . . . that it is possible to construe Gisbrecht such
that its prohibition against lone reliance on the lodestar
method still permits a court to include a lodestar
calculation in its consideration of the fee—specifically, in
instances where the court simultaneously relies on
additional factors to support its determination that the
contingency fee constitutes an unearned advantage to the
attorney—such that the fee award may be considered a
windfall.
Jeter, 622 F.3d at 377 (emphasis added). According to Jeter, the focus must
be on whether there is
some unearned advantage for which it would not be
reasonable to compensate him.
Any other reading would give attorneys a perverse incentive
to delay proceedings or expend unnecessary hours in an
effort to prolong successful litigation—all to ensure that
their § 406(b) fee would not be reduced based on its
appearing excessively high in comparison to the number of
hours they expended. Likewise, we do not read Gisbrecht’s
“windfall” as support for the proposition that experienced,
competent counsel should be punished for accomplishing
an arduous task in a shorter span of time than lessexperienced, less-aggressive counsel.
Accordingly, we
interpret Gisbrecht’s prohibition on the lodestar method as
an affirmation that if a claimant’s success on appeal can be
attributed to his attorney’s endeavors before the district
court, then that attorney should reap the benefit of his
work—even if he managed to accomplish a great deal in a
small window of time. In this way, Gisbrecht’s “windfall”
does not preclude attorneys from recovering what may
mathematically seem like a high fee award if the attorney’s
success on appeal is of his own making.
Id. at 380-81. Furthermore, Jeter says:
7
[W]e read Gisbrecht as commanding that in order for
district courts to rely on the lodestar method to find a
particular fee constitutes a windfall, the district court must
also articulate the factors that demonstrate to the court
that the fee is unearned. Specifically, the district court
must discuss the factors that demonstrate that the success
on appeal is not of the attorney’s making, but rather, is
attributable to some other source for which it would be
unreasonable to compensate the attorney.
Id. at 381 (emphasis added).
Following Gisbrecht, Crawford and Jeter, I conclude that the influence of
the lodestar calculations here have distorted the proper analysis.
I do not
accept the Commissioner’s argument that this court should approve an award
measured by the attorney’s hours times the EAJA rate with a multiplier of 3,
and the paralegal’s hours according to the EAJA rate.
Instead, I start with the contingent fee: $5,366.62 for the work done in
this federal court, hardly an overwhelming sum for federal court practice and
certainly not for the amount recovered for this client. It is undisputed that the
claimant’s lawyers were very successful on her behalf in reversing the
Commissioner’s denial of benefits, and there is no accusation of delay or
inadequate representation. The only issue is whether the fee is too large given
the paralegal’s significant role. Under the Crawford and Jeter analysis, which I
believe is faithful to Gisbrecht, the answer is no. How the law firm chooses to
accomplish the task is not the issue.
There is no suggestion that this was
obviously an inordinately easy case from the outset and that the success was
not due to the law firm’s efforts, or that its success was attributable to some
other source.
8
That should be the end of the matter. Nevertheless, I will deal with the
Commissioner’s arguments and concerns. The Commissioner says the fee is
too large because too much is being awarded for the paralegal’s work. At oral
argument, the Commissioner’s lawyer was troubled that at even an hourly rate
of $75 (he may have said $70), “the paralegal would be paid at $150,000 plus
per year,” whereas the average paralegal salary across the country is $50,000.
First, that argument gives improper primacy to the lodestar calculation rather
than the fee agreement. Second, $150,000 is not necessarily an unreasonable
amount to bill for a salary of $50,000, because the law firm must take in far
more dollars than the paralegal’s salary to make it profitable to employ him or
her. The law firm must also pay fringe benefits, unemployment and worker’s
compensation insurance, rent, heat, light, malpractice premiums, other
insurance and other elements of overhead before it can make a profit on
employing the paralegal. Third, and critical to the manner in which contingent
fees work, on cases where there is no monetary recovery the law firm receives
nothing, even though it still must pay salary and benefits to those who worked
on the case as well as rent for their space, malpractice insurance premiums
and general overhead. The paralegal may not be at risk for his or her salary (if
the law firm can survive), but the law firm takes on the risk of that salary and
all the other related elements of overhead in every contingent fee case.
Therefore, the law firm must receive more than its ordinary billing rates for
9
cases that it wins, to offset the time and expenditures on those where it loses
and receives no reimbursement.6
For the limited manner in which the lodestar calculation should be used
in assessing a contingent fee award, the Commissioner should have continued
with the analysis with which he began: What was the total effort expended by
this law firm? Law firm practices need not follow a single model. Some lawyers
do all their own research; some outsource; some use paralegals; some use law
clerks, legal assistants, or interns; probably there are other variations.7 It is
not the purpose of a fee award to encourage or discourage one or another of
these. Law firms should be free to use the most economically efficient model as
long as they comply with ethical standards and provide excellent legal
representation to their clients.
Thus, if this law firm is able to educate its
According to Restatement (Third) of the Law Governing Lawyers § 35 comment c (2000):
A contingent fee may permissibly be greater than what an hourly
fee lawyer of similar qualifications would receive for the same
representation. A contingent-fee lawyer bears the risk of receiving
no pay if the client loses and is entitled to compensation for
bearing that risk.
Nor is a contingent fee necessarily
unreasonable because the lawyer devoted relatively little time to a
representation, for the customary terms of such arrangements
commit the lawyer to provide necessary effort without extra pay if
a relatively large expenditure of the lawyer’s time were entailed.
However, large fees unearned by either effort or a significant
period of risk are unreasonable.
A tribunal will find a contingent fee unreasonable due to a
defect in the calculation of risk in two kinds of cases in
particular:
those in which there was a high likelihood of
substantial recovery by trial or settlement, so that the lawyer bore
little risk of nonpayment; and those in which the client’s recovery
was likely to be so large that the lawyer’s fee would clearly exceed
the sum appropriate to pay for services performed and risks
assumed. A lawyer’s failure to disclose to the client the general
likelihood of recovery, the approximate probable size of any
recovery, or the availability of alternative fee systems can also
bear upon whether the fee is reasonable.
7 The lawyers told me at oral argument that in Maine no other social security disability
practitioners use paralegals as much as this firm, and that the proportion of paralegal time in
this case is unusual even for this firm.
6
10
paralegals to do some of the work that other firms assign to lawyers, that
ability should not compel it to reduce its contingent fee. At oral argument, the
claimant’s lawyer told me that the paralegal did much of the factual
preparation of the case.
With no indication that a total of 30 hours was
excessive legal work to achieve the result here, producing an effective modest
hourly rate of $177.79 for the total services, that should have been the end of
the matter.8
It is true that Gisbrecht talks about the amount of time “counsel” spent
on the case. But there is no suggestion that in using this language the Court
was focusing on the lawyer’s time alone in assessing the reasonableness of a
contingent fee and trying to bind Social Security practice to a particular model
of law firm structure.
As I have stated, if a firm can organize its practice
efficiently by using less of its lawyers’ time, yet still produce high quality legal
work, it should not be penalized in the fee it can recover.
A different
conclusion would lead this and other lawyers to do more of the work
themselves and delegate less to paralegals, to no apparent gain. I conclude
that the reasonableness review contemplated by Gisbrecht has to do with the
entire fee, compared to the services rendered, and is not limited to the hours
put in by someone admitted to the bar.
8 At oral argument when I pressed the Commissioner’s lawyer, he suggested that if the
claimant’s lawyer had done all the work without using a paralegal, the total hours (30) would
have been lower because of the lawyer’s experience. The claimant’s lawyer said that 2
paralegal hours to 1 lawyer’s hour is the firm’s rule of thumb. On that basis, the lawyer would
have spent an additional 12.5 hours (in place of the paralegal’s 25 hours) for a total of 17.2
hours. Under the Commissioner’s approach (hours X the EAJA rate ($175.75) X 3), the fee
award would be $9,068.70, higher than the amount the law firm has requested.
11
Thus, the issue here is not whether paralegal time is compensable or, if
so, what multiplier, if any, is appropriate. The issue is whether this percentage
contingent fee agreement yields a reasonable fee amount in this case.
The
answer to that question depends upon the legal services provided, regardless of
how the law firm structured its work on the case, and whether that amount
needs to be reduced (Crawford) or whether there is some additional reason
beyond the lodestar calculation (Jeter) to find that some part of the fee was
unearned and not due to the law firm’s efforts. I conclude that the amount
requested here does not create such a windfall.9
Now I recognize that something else is going on in this dispute. There
are thousands of these cases, and the Commissioner is looking for rules of
thumb as to which fee requests to challenge and which not.
Fair rules of
thumb can save the time and resources of the court as well. Apparently in past
cases this District’s Magistrate Judges have indicated that there is no point in
the Commissioner challenging fee requests where the lawyer gets a recovery of
no more than 2 or 3 times the hourly rate he/she is able to recover in an EAJA
fee award.10 The Commissioner would like similar guidance on how to evaluate
fee requests when paralegal time is a major component. I am not in this case
approving or disapproving a rule of thumb that reduces the number of attorney
9 I note also that payment is delayed in contingency fee cases. Here, although time started
accruing in 2007, the law firm still is awaiting final payment, not generally the case with hourly
billing arrangements.
10 See, e.g., Quimby v. Astrue, 04-33-JAW, 2010 WL 817464, *5 (D. Me. March 4, 2010); Quint
v. Astrue, 05-135-JAW, 2008 WL 4905482, *3 (D. Me. Nov. 12, 2008); Ogle v. Barnhart, No. 99314-DBH, 2003 WL 22956419, at *6 (D. Me. Dec. 12, 2003). In note 4 supra, I express my
discomfort with using the EAJA fee as the putative hourly rate, but I also observe that the law
firm could do a better job of providing an alternative to the Magistrate Judge.
12
fee contests in this District. But if there is to be a rule of thumb, it must apply
to the legal services provided, not fixate on who is providing them. And most
important, the rule of thumb cannot be taken to announce that anything
beyond its limit is unreasonable. It can only set aside a group of fee amounts
that will be deemed reasonable without further attention. Any other case, just
like this one, must still be evaluated according to the rule of Gisbrecht,
Crawford and Jeter for the reasonableness of the fee amount given all the
services rendered by the law firm as a whole, and why some portion of the fee
requested should be considered as “unearned” and attributed to some source
other than the law firm’s efforts.11
I know that attorney fee disputes present difficult issues and the
temptation to find easy formulas to resolve them is almost irresistible.
But
Gisbrecht has told us that the percentage contingency fee is the default. The
burden is on the person attacking the resulting fee amount to show that part of
See, e.g., McGuire v. Sullivian, 873 F.2d 974, 981 (7th Cir. 1989) (court upheld an award of
$15,533.12 for 42.74 hours of legal service before the court which amounted to somewhat less
than twenty-five percent of past-due benefits and represented over $316 per hour in1989);
Yarnevic v. Apfel, 359 F.Supp.2d 1363, 1363-67 (N.D.Ga. 2005) (approving a contingency fee
agreement resulting in an award of $21,057.75 for approximately 33 hours of work conducted
primarily by the attorney's paralegals, representing $638 per hour); Claypool v. Barnhart, 294
F. Supp. 2d 829 (S.D.W.Va. 2003) (approving an award under a contingency fee agreement of
$18,000, or approximately 9 percent of the past-due benefits awarded, for 12.56 hours of work,
representing $1,433 per hour); Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D.Cal. 2003)
(approving $25,132.50 for 56 hours, representing $448 per hour); Martin v. Barnhart, 225 F.
Supp. 2d 704 (W.D.Va. 2002) (awarding $10,189.50 for 16.82 hours of court-related work,
representing over $605 per hour); Dodson v. Barnhart, Civil No 00-0022, 2002 WL 31927589
(granting fee award of $5,000 representing $694.44 per hour); Hussar-Nelson v. Barnhart, No.
99 C 0987, 2002 WL 31664488 (N.D.Ill. 2002) (awarding fee of $19,425.25, representing 25%
of past due benefits, representing approximately $393 per hour); Roark v. Barnhart, 221 F.
Supp. 2d 1020, 1026 (W.D.Mo. 2002) (awarding $2,729.78 of contingent fees to plaintiff's
counsel for 13.25 hours of work, representing $206.02 per hour); Coppett v. Barnhart, 242 F.
Supp. 2d 1380 (S.D.Ga. 2002) (granting $6,554.12 in attorney fees for 18.7 hours of work,
representing $350.49 per hour).
11
13
it is unearned. A lodestar calculation with enhancement is not sufficient to
that task.
Accordingly, I DECLINE to adopt the Report and Recommended Decision
of the Magistrate Judge in this case. The motion for attorney fees is GRANTED
in the amount of Five Thousand Three Hundred Sixty-Six Dollars and SixtyTwo Cents ($5,366.62).
SO ORDERED.
DATED THIS 20TH DAY OF JULY, 2011
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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