Batchelor v. Astrue
ORDER granting 33 Motion for Attorney Fees - Signed by District Judge Louise Wood Flanagan on 10/30/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
GARY W. BATCHELOR,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
This matter comes before the court on motion for attorney’s fees filed by plaintiff’s counsel,
Mr. Rick W. Fleming, Esq., pursuant to 42 U.S.C. § 406(b)(1). Defendant has not responded. In
this posture the matter is ripe for ruling.
In the underlying litigation, plaintiff challenged defendant’s final decision as to disability
benefits. Plaintiff filed a complaint in this court and defendant answered. Plaintiff filed a motion
for judgment on the pleadings accompanied by a memorandum of law in support thereof. Defendant
filed a motion urging the court to uphold the final decision. The court granted plaintiff’s motion,
ordering that the case be remanded back to defendant for further proceedings.
On August 16, 2013, the court awarded plaintiff $3,200.00 in attorney’s fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). On May 6, 2014, defendant issued a favorable
decision approving plaintiff’s application for benefits, withholding $29,687.98 from past due
benefits, representing 25% of past due benefits payable to plaintiff’s attorney. Plaintiff’s counsel
now seeks such amount withheld per plaintiff’s representation agreement attached to the
memorandum in support of the motion, minus $5,911.00 already paid for administrative work before
the Social Security Administration, resulting in total fee request of $23,776.98. In further support
of the motion, counsel attaches the benefits award, and in the memorandum in support of the motion
counsel states that he has represented plaintiff continuously since February 13, 2009, both before
the Social Security Administration and this court. In his prior statement of time and billing attached
to the EAJA motion, plaintiff documented 25.6 hours attorney time in this case. Counsel states that
upon receipt of the § 406(b) fee award, counsel will reimburse to plaintiff the amount that counsel
previously received as part of counsel’s request for EAJA fees.
Section 406(b) provides that “[w]henever a court renders a judgment favorable to a claimant
. . . 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 % of the total of the
past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U.S.C.A. §
406(b)(1)(A). The Supreme Court has held that “§ 406(b) does not displace contingent-fee
agreements as the primary means by which fees are set for successfully representing Social Security
benefits claimants in court. Rather, § 406(b) calls for court review of such arrangements as an
independent check, to assure that they yield reasonable results in a particular case.” Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002).
“[A] reduction in the contingent fee may be appropriate when (1) the fee is out of line with
‘the character of the representation and the results . . . achieved,’ (2) counsel’s delay caused past-due
benefits to accumulate ‘during the pendency of the case in court,’ or (3) past-due benefits ‘are large
in comparison to the amount of time counsel spent on the case.’” Mudd v. Barnhart, 418 F.3d 424,
428 (4th Cir. 2005) (quoting Gisbrecht, 535 U.S. at 808). In reviewing the request for fees, a
“reviewing court should disallow ‘windfalls for lawyers.’” Gisbrecht, 535 U.S. at 808 (quoting
Rodriguez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989)).
Although there is no bright-line test for determining whether a fee will result in a “windfall,”
this court has considered several factors, including “(1) whether the attorney’s efforts were
particularly successful for the plaintiff, (2) whether there is evidence of the effort expended by the
attorney demonstrated through pleadings which were not boilerplate and through arguments which
involved both real issues of material fact and required legal research, and finally, (3) whether the
case was handled efficiently due to the attorney’s experience in handling social security cases.”
Perrigo v. Astrue, 5:08-CV-626-FL, 2012 WL 3903896 *4 (E.D.N.C. May 22, 2012) (quotations
omitted); Abernathy v. Astrue, No. 4:08–CV–99–FL, 2011 WL 488657, at *2 (E.D.N.C. Feb. 7,
2011); see Mudd, 418 F.3d at 428 (identifying factors relevant to reasonableness as “the overall
complexity of the case, the lawyering skill necessary to handle it effectively, the risks involved, and
the significance of the result achieved in the district court.”).
In this case, the court finds the fee reasonable based on consideration of all these factors.
The fee is in line with the contingency-fee character of the representation and the results achieved,
where counsel achieved a successful remand resulting in an award of benefits for plaintiff. Counsel
did not unreasonably delay during the pendency of the case in court. The record evidences
significant effort by counsel through pleadings which were not boilerplate, and through arguments
which involved both real issues of material fact and required legal research. In addition, counsel
evidences efficient handling of this case through experience in other social security case
In sum, the court finds reasonable the $23,776.98. in fees requested in this case.
Accordingly, plaintiff’s counsel will be awarded fees in this amount where they fall within the
statutory maximum of 25 % of the total benefits awarded, pursuant to 42 U.S.C. § 406(b). Where
counsel was awarded prior EAJA fees, counsel will be required to “refund to the claimant the
amount of the smaller fee,” already received. Gisbrecht, 535 U.S. at 807.
For the foregoing reasons, plaintiff’s counsel’s motion for approval of attorney’s fees is
ALLOWED in the full amount requested of $23,776.98. The Commissioner shall release to
plaintiff’s counsel the sum of $23,776.98 as attorney’s fees for services rendered before this court.
Counsel shall refund to plaintiff $3,200.00, the amount awarded pursuant to EAJA.
SO ORDERED, this the 30th day of October, 2014.
LOUISE W. FLANAGAN
United States District Judge
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