Phillips v. Colvin

Filing 50

ORDER granting 47 Motion for Attorney Fees in the full amount requested of $21,501.50, and counsel shall return to Plaintiff the $4,681.00 in fees previously awarded pursuant to EAJA. Signed by Magistrate Judge Robert B. Jones, Jr. on 10/28/2016. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:14-CV-55-RJ
TRACY PHILLIPS, JR.,
Plaintiff,
v.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the court on a motion for attorney's fees filed by Plaintiffs counsel,
James B. Gillespie, Jr., pursuant to 42 U.S.C. § 406(b)(l). [DE-47]. Defendant does not support
or oppose the motion. [DE-49]. For the reasons that follow, the motion is allowed.
I. BACKGROUND

This matter stems from Defendant's denial ofPlaintiffs application for Disability Insurance
Benefits. Plaintiff filed an application to proceed in forma pauperis and complaint in this court [DE1, -5], followed by a motion for judgment on the pleadings with supporting memoranda oflaw and
nine exhibits [DE-22]. Thereafter, the parties consented to have a magistrate judge conduct all
proceedings in this case, which was reassigned to the undersigned. [DE-31, -34]. In response to
Plaintiffs motion for judgment on the pleadings, Defendant filed a consent motion to remand, which
the court allowed, reversing the Commissioner's decision under sentence four of 42 U.S.C. § 405(g)
and remanding the case to the Commissioner for further proceedings. [DE-39, -40]. The court
awarded Plaintiff $4,681.00 in attorney's fees under the Equal Access to Justice Act ("EAJA"), 28
U.S.C. § 2412(d). [DE-44].
On remand, Defendant issued a favorable decision approving Plaintiffs application for

benefits, awarding Plaintiff$110,006.00 in past due benefits. [DE-47]

~

5; [DE-47-1]. Plaintiffs

counsel now seeks 25% of the past due benefits, or $27,501.50, pursuant to Plaintiffs representation
agreement [DE-47-2], less a $6,000.00 administrative fee approved to be paid from withheld
benefits, resulting in a net payment of $21,501.50, from which counsel will pay $4,681.00 to
Plaintiff for the previously awarded EAJA fees. [DE-4 7]

~~

5-11. Counsel, in support of the

motion, offers the benefits award, fee agreement, and affidavits with time sheets reflecting 24.67
hours of attorney time. [D E-4 7-1 through -4 7-3].
II. DISCUSSION

Under section 406(b), "[w]henever a court renders ajudgment 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 of25% ofthe total ofthe pastdue benefits to which the claimant is entitled by reason of such judgment."

42 U.S.C. §

406(b)(1)(A). The Supreme Court has instructed 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" and the court must review these 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). In conducting its review, the court may find a reduction in the contingent fee
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."' Muddv. Barnhart, 418 F.3d 424,428 (4th Cir. 2005) (quoting Gisbrecht, 535
U.S. at 808). A "reviewing court should disallow 'windfalls for lawyers,'" Gisbrecht, 535 U.S. at
2

808 (quoting Rodriguez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989)).

Factors courts have

considered in determining whether a fee award will result in a "windfall" include "(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." Murrell v. Colvin, No. 4:13-CV-124-FL, 2016 WL 4287813, at *1 (E.D.N.C.
Aug. 15, 2016) (unpublished) (citations omitted).
Applying the framework set forth above, the court finds that the requested attorney's fees are
reasonable. Counsel has presented a contingent fee agreement entered into between Plaintiff and
counsel, providing for counsel's entitlement to 25 percent of the past due disability benefits awarded
to Plaintiff, which is no greater than the statutory ceiling. See Mudd, 418 F .3d at 428 ("As long as
the agreement does not call for a fee above the statutory ceiling of twenty-five percent of awarded
past-due benefits, ... §406(b) simply instructs a court to review the agreement for reasonableness.")
(citing Gisbrecht, 535 U.S. at 807). In the Notice of Award letter, the SSA informed Plaintiffthat
it had withheld the 25 percent ($27,501.50) from past due benefits in order to pay approved
attorney's fees. [DE-47-1] at 4. Thus, the requested fee is in accord with the contingency-fee
character of the representation. See Joslyn v. Barnhart, 389 F. Supp. 2d 454,456 (W.D.N.Y. 2005)
("Deference should be given ... to the 'freely negotiated expression both of a claimant's willingness
to pay more than a particular hourly rate ... and of an attorney's willingness to take the case despite
the risk of nonpayment."') (quoting Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)). With
respect to the results achieved, through counsel's efforts Plaintiff won a remand for further

3

proceedings, ultimately resulting in an award of $110,006.00 in past due benefits dating back to
August 2006. There is no evidence of delay tactics employed by counsel, and the case was handled
efficiently. Counsel, who is an experienced practitioner in federal court, promptly filed this matter
within a week of assuming representation of Plaintiff. [DE-l, -4 7 -2]. Counsel received one 30-day
extension before timely filing a lengthy and well-supported motion for judgment on the pleadings,
evidencing thorough research and application oflaw to the particular facts of Plaintiffs claim, rather
than boilerplate recitations, which resulted in a consent remand.

[DE-21, -22, -39, -40].

Accordingly, despite the size of the requested fee award and a resulting effective hourly rate of
roughly $1,115 .00, the court finds the hourly rate is not determinative in this case and, in light of the
above analysis, the award does not amount to a windfall for counsel. See Joslyn, 389 F. Supp. 2d
at 456 (finding $38,116.50 award was "not a windfall because of the unusually long duration ofthe
period of disability here, and the unique challenges this case presented."); see also Pearson v.

Colvin, No.4: 12-CV-23-FL, 2014 WL 7205095, at *2-3 (E.D.N.C. Dec. 17, 2014) (unpublished)
(finding $18,000.00 fee award, resulting in a $750.00 effective hourly rate, was reasonable) (citing

Washington v. Colvin, No. 5:08-CV-55-FL, 2013 WL 1810586 *3 (E.D.N.C. April 29, 2013)
(unpublished) (awarding $23,165.50 for24 hours of work (effective hourly rate of$965.23 per hour);

Claypool v. Barnhart, 294 F. Supp. 2d 829, 833-34 (S.D. W.Va. Oct. 9, 2003) (approving requested
award of $18,000.00 for 12.56 hours (effective hourly rate of $1,433.00)) (additional citations
omitted).
Having considered the deference owed to the agreement between counsel and Plaintiff,

Joslyn, 389 F. Supp. 2d at 456, the interest in assuring that attorneys continue to represent clients
such as Plaintiff, Gisbrecht, 535 U.S. at 805, and the factors identified by the Supreme Court, id. at

4

808, the court finds the requested attorney's fees are reasonable.

Counsel shall be awarded

$21,501.50 and shall return to Plaintiffthe $4,681.00 in fees previously awarded under the EAJA.
III. CONCLUSION

For the reasons stated herein, the motion for attorney's fees [DE-47] is ALLOWED in the
full

amount

requested

of $21,501.50,

and

counsel

shall

return

$4,681.00 in fees previously awarded pursuant to EAJA.
SO ORDERED, the 28th day of October 2016.

Rifili~/i Jr!

United States Magistrate Judge

5

to

Plaintiff the