Johnson, II v. Berryhill

Filing 39

ORDER granting 37 Motion for Attorney Fees in the amount of $ 10,132.50. Counsel shall return to Plaintiff the $6,000.00 in fees previously awarded pursuant to the EAJA. Signed by US Magistrate Judge Robert B. Jones, Jr. on 3/19/2020. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-105-RJ
CHARLES ELLIS JOHNSON, II,
Plaintiff,
v.

ANDREW SAUL,
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). [DE-37]. Defendant responded to the
motion but took no position. [DE-38]. For the reasons that follow, the motion is allowed, and
counsel is awarded $10, 132.50 and shall refund to Mr. Johnson $6,000.00 in fees previously awarded
pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d).
I. BACKGROUND

Plaintiff, proceeding informa pauperis, filed a complaint contesting the denial of disability
benefits. [DE-1 , -6] . The parties consented to have a magistrate judge conduct all proceedings in
the case, which was reassigned to the undersigned. [DE-20, -21]. Plaintiff filed a motion for
judgment on the pleadings with supporting memorandum [DE-24, -25], and Defendant responded
by filing a cross-motion for judgment on the pleadings and supporting memorandum, [DE-28, -29].
The court allowed Plaintiffs motion and remanded the case for further proceedings. [DE-30]. Upon
stipulation and agreement of the parties, the court awarded Plaintiff $6,000.00 in attorney' s fees
under the EAJA. [DE-35].

On remand, the Commissioner issued a favorable decision approving Plaintiffs application
and awarding past due benefits in the amount of $64,530.00, from which 25%, or $16,132.50, was
withheld to pay attorney' s fees . Pl. 's Mot. [DE-37]

~

5. Counsel submitted a fee application for

$6,000.00 to the Administrative Law Judge ("ALJ") for representation at the administrative level
and asks the court to award the remaining $10, 132.50 pursuant to the contingency fee agreement
between counsel and Mr. Johnson. Id.

~

7-8. Counsel proposes to return to Mr. Johnson the

$6,000.00 previously awarded under the EAJA.

Id.~ 9.

In support of the motion, counsel offers the

September 18, 2019 and February 2, 2020 notices of award, the fee agreement, and counsel ' s
affidavit reflecting 33 hours and 34 minutes of attorney time expended in this case. [DE-37-1
through -37-3].
II. DISCUSSION
Under section 406(b), " [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 pastdue benefits to which the claimant is entitled by reason of such judgment."

42 U.S .C. §

406(b)(l)(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 ofline with 'the character of the representation and the results
... achieved,' (2) counsel ' s delay caused past-due benefits to accumulate ' during the pendency of
2

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). 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)). Factors courts have
considered in determining whether a feed 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) (citations omitted).
Additionally, a fee award under section 406(b) allows only "attorney' s fees for representation
in court, or for court-related work." Mudd, 418 F.3d at 428. However, in assessing reasonableness,
the court may appropriately consider "the time spent and work performed by counsel on the case
when it was pending at the agency level," which may provide context for the factors "relevant to
[the] reasonableness inquiry, such as the overall complexity of the case, the lawyering skills
necessary to handle it effectively, the risks involved, and the significance of the result achieved in
district court." Id. Where attorney' s fees are awarded under both 28 U.S .C. § 2412(d) and 42 U.S.C.

§ 406(b)(l)(A), "the EAJA compensation serves as a reimbursement to the claimant for fees paid
out of the disability award." Thomas v. Barnhart, No. 1:02-CV-198, 2005 WL 894886, at *2 (W.D.
Va. Apr. 18, 2005). In such a case, the "claimant' s attorney must refund to the claimant the amount
of the smaller fee. " Gisbrecht, 535 U.S. at 796 (internal quotation marks and citation omitted).

3

Applying the framework set forth above, the court finds that the requested attorney's fees are
reasonable. Counsel has presented a contingent fee agreement providing for counsel ' s entitlement
to 25% of the past due disability benefits awarded, 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). The SSA informed Mr.
Johnson that it withheld 25% of past due benefits, or $16, 132.50, in order to pay approved attorney' s
fees . [DE-37]

if 5.

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 Mr. Johnson's claim was
remanded for further proceedings, ultimately resulting in an award of past due benefits. 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, filed a well-supported motion for judgment on the
pleadings, evidencing thorough research and application of law to the particular facts of Plaintiff's
claim, rather than boilerplate recitations. [DE-25]. Finally, the fee is not out of line with the
character of the representation and the results achieved.
Accordingly, having considered the relevant factors herein identified, the court finds the
requested attorney's fees are reasonable and awards counsel $10, 132.50. Counsel shall return to Mr.
Johnson the $6,000.00 in fees previously awarded under the EAJA.
4

III. CONCLUSION
For the reasons stated herein, the motion for attorney' s fees [DE-37] is allowed in the amount
of$ I 0, 132.50, and counsel shall return to Plaintiff the $6,000.00 in fees previously awarded pursuant
to the EAJA.
SO ORDERED, the

_LJ_ day of March, 2020.

Rod~

United States Magistrate Judge

5