Miller v. Colvin

Filing 28

ORDER re: 26 Motion for Attorney Fees. Signed by Chief Judge Frank D. Whitney on 4/24/2018. (nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5:15-cv-00033-FDW
ANGEL S. MILLER,
Plaintiff,
vs.
NANY A. BERRYHILL,
Acting Commissioner, Social Security
Administration,
Defendant.

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ORDER

THIS MATTER is before the Court on Plaintiff Angel S. Miller’s Motion for Attorney’s
Fees (Doc. No. 26) pursuant to 42 U.S.C. § 406(b). Defendant neither supports nor opposes the
Motion. (Doc. No. 27).
The Social Security Act provides that a "[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
percent of the total of the past due benefits to which claimant is entitled by reason of such
judgment." 42 U.S.C. § 406(b). However, if the Court has already awarded attorney fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), counsel representing the claimant
must refund to the claimant the smaller of the fees. See generally Stephens v. Astrue, 565 F.3d
131, 135 (4th Cir. 2009).
Upon review of a motion for attorney fees under section 406(b) seeking an award not in
excess of 25 percent of the past due benefits, the Court reviews the contingency fee agreement
between the claimant and counsel for reasonableness. See Mudd v. Barnhart, 418 F.3d 424, 428
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(4th Cir. 2005). "[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.'" Id. (quoting Gisbrecht
v. Barnhart, 535 U.S. 789, 808 (2002)).
In the case at bar, Plaintiff, through counsel, seeks an award of $9,837.50 in attorney’s fees
with the stipulation that upon receipt of the payment Plaintiff’s counsel will refund to Plaintiff
$3,837.50 in fees previously awarded under the EAJA Plaintiff, through counsel, contends such
an award is proper as calculated under the lodestar method, multiplying counsel’s total time
devoted to the case, 64.6 hours, by counsel’s hourly fee of $152.28. 1 (Doc. No. 26, p. 3).
Defendant filed a response to the motion (Doc. No. 27) noting that under Gisbrecht v.
Barnhart it is the duty of the Court to determine a reasonable fee. 535 U.S. at 807 (Ҥ 406(b) calls
for court review of such arrangements as an independent check, to assure that they yield reasonable
results in particular cases.”) In Gisbrecht, the Court determined that through section 406(b)
Congress intended to provide a clear boundary line: “[a]greements are unenforceable to the extent
that they provide for fees exceeding 25 percent of the past-due benefits.” Id.
On February 3, 2018, following the ALJ’s decision in favor of Plaintiff, Defendant
determined Plaintiff was entitled to an award of $36,089.62 in past due benefits on her Title XVI
claim. Accordingly, counsel’s request for $9,837.50 in attorney’s fees exceeds 25% of past-due
benefits by approximately $800.2 Furthermore, Plaintiff’s lodestar calculation inappropriately

Plaintiff had previously signed a retainer agreement with her counsel agreeing to assign any attorney’s fees received
under the EAJA, plus authorized an additional fees if the case was successful on remand up to $6,000. She executed
a new agreement with counsel authorizing fees up to 25% of her past due benefits. (Doc. No. 26, p. 3).
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25% of $36,089.62 is $9,022.41.
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includes hours expended by Plaintiff’s counsel at the administrative level. 3 Time expended by
counsel at the administrative level is a factor in the fee reasonableness determination but is not to
be included as part of the hours compensated under a section 406(b) petition. See Gisbrecht, 535
U.S. at 794; see also Mudd, 418 F.3d at 427.
IT IS THEREFORE ORDERED that Plaintiff’s counsel shall be awarded fees under 42
U.S.C. § 406(b) in the amount of $9,022.41 (25% of Plaintiff’s past-due benefits).
IT IS FURTHER ORDERED that Plaintiff’s counsel shall refund to Plaintiff $3.837.50,
the amount of the EAJA fee awarded in this case.
IT IS SO ORDERED.
Signed: April 24, 2018

In reviewing Plaintiff’s affidavit (Doc. No. 26-5) it appears that 35.7 hours were expended by counsel in her
representation of Plaintiff before this Court while 28.9 were expended at the administrative level.
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