Newson v. Saul

Filing 25

ORDER granting 23 Motion for Attorney Fees. Signed by Magistrate Judge Jane M. Virden on 5/9/22. (jla)

Case: 3:19-cv-00282-JMV Doc #: 25 Filed: 05/09/22 1 of 3 PageID #: 1288

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
APRIL NICOLE NEWSON

PLAINTIFF

V.

NO. 3:19-cv-00282-JMV

KILOLO KIJAKAZI,
ACTING COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

ORDER
Before the Court are Plaintiff’s motion for an award of $604.40 in attorney fees pursuant
to § 206(b)(1) of the Social Security Act, 42 U.S.C. § 406(b)(1) [23] and Defendant’s response
[24]. For the reasons that follow, Plaintiff’s request for approval of a payment to his counsel of
$604.40 from her past-due benefits is GRANTED.
April Nicole Newsom filed an action in this Court on December 16, 2019, to appeal the
Commissioner's decision denying his applications for disability benefits. On November 7, 2020,
this Court entered a Final Judgment [19] that reversed the case and remanded it to the Social
Security Administration (the “Agency”) for further proceedings pursuant to sentence four of 42
U.S.C. § 405(g). Following the Court’s reversal and remand, the Commissioner issued a favorable
decision and on March 8, 2022, issued a Notice of Award of past-due benefits in the amount of
$58,492.00. See Pl.’s Mot. at Ex. 1. [23]
Plaintiff filed the instant motion on March 25, 2021. In his response to the motion, the
Commissioner states he “has no formal position because the Commissioner is not the true party in
interest.” Def.’s Br. at 5. [24]. However, the Commissioner points out that the Court “must act as
an independent check on such arrangements to assure that they satisfy the statutory requirement of
yielding a “reasonable” result in particular cases.” Id. at 2.

Case: 3:19-cv-00282-JMV Doc #: 25 Filed: 05/09/22 2 of 3 PageID #: 1289

The court is obligated to independently review the fee request and ensure it satisfies the
statutory requirement of yielding a reasonable result. Having fulfilled its obligation, the Court
finds the fee request in this case is reasonable. Pursuant to 42 U.S.C. § 406(b)(1)(A), when a court
“renders a judgment favorable to a claimant . . . who was represented before the court by an
attorney,” the court may award “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.” “[T]he 25% cap applies only to fees for representation before the court, not the
agency.” Culbertson v. Berryhill, 139 S. Ct. 517, 522, 202 L. Ed. 2d 469 (2019). Fees under
§ 406(b) satisfy a client's obligation to her counsel and, accordingly, are paid out of the plaintiff's
social security benefits. See Orner v. Shalala, 30 F.3d 1307, 1309 (10th Cir. 1994). A contingency
fee agreement to pay 25% of any past-due benefits awarded may set the amount of the Section
406(b) award so long as the amount is reasonable under the facts of the case. See Gisbrecht v.
Barnhart, 535 U.S. 789, 807-08 (2002).1
Here, Plaintiff’s counsel requests authorization for payment of $604.40 from monies
withheld by the Agency from the claimant’s past-due benefits. More precisely, overall, Plaintiff is
in effect seeking attorney fees totaling $8,623.00 for work performed at the District Court level,

1

In Gisbrecht, the Supreme Court noted:
Courts that approach fee determinations by looking first to the contingent-fee
agreement, then testing it for reasonableness, have appropriately reduced the
attorney's recovery based on the character of the representation and the results the
representative achieved. If the attorney is responsible for delay, for example, a
reduction is in order so that the attorney will not profit from the accumulation of
benefits during the pendency of the case in court. 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.

Id. at 807-08, 122 S. Ct. at 1828 (internal citations and footnotes omitted).

Case: 3:19-cv-00282-JMV Doc #: 25 Filed: 05/09/22 3 of 3 PageID #: 1290

$8,018.60 (the amount of the already awarded EAJA fees) plus additional fees of $604.40 =
$8,623.00. If the hour total of 39.70 is utilized, the overall of amount of $8,623.00 for would
represent an hourly rate of $217.00, which is only slightly higher than the hourly rate previously
properly awarded under the Equal Access to Justice Act.
First, counsel has presented a contingency fee agreement, signed by Plaintiff, wherein
Plaintiff has agreed that his attorneys have the right to seek as much as 25% of her past-due benefits
for representation in court. Second, counsel for Plaintiff are experienced Social Security attorneys
and achieved a favorable result for Plaintiff before this Court and before the Agency. Third, the
Fifth Circuit Court of Appeals and district courts in this circuit have acknowledged the high risk
of loss inherent in Social Security appeals.2 Finally, the total fee requested amounts to 14.7% of
the claimant’s past-due benefits and does not offend Section 406(b)(1)(A)’s limitation on fees.
THEREFORE, IT IS ORDERED that Plaintiff’s petition for an award of attorney fees is
GRANTED. Payment to counsel for Plaintiff from Plaintiff’s past-due benefits in the amount of
$604.40 is approved.
SO ORDERED this, the 9th day of May, 2021.
/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

2

See Jeter v. Astrue, 622 F.3d 371, 379 & n.9 (5th Cir. 2010).