Ashley v. Commissioner of Social Security Administration

Filing 34

ORDER granting 31 Motion for Attorney Fees per Rule 406b, awarding $29,978.00 in attorney's fees. Signed by Honorable J. Michelle Childs on 07/29/2020.(bshr, )

0:16-cv-03204-JMC

Date Filed 07/29/20

Entry Number 34

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION

Juston John Ashley,
Plaintiff,
v.
Andrew Saul,
Commissioner of the Social Security
Administration,1
Defendant.

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Civil Action No.: 0:16-cv-03204-JMC

ORDER

On July 14, 2020, Petitioner Sylvia McLeod (“Petitioner”) filed a Petition for Attorney’s
Fees (ECF No. 31) pursuant to 42 U.S.C. § 406(b)(1). H. Jeff McLeod (“Counsel”) was the
attorney of record in the above-referenced case and Petitioner serves as the personal representative
of his estate. (Id. at 1.) In the Petition, Petitioner requests reimbursement for representation
Counsel provided in the above-referenced case in the amount of $29,978.00. (Id. at 2.) The
$29,978.00 amounts to 25% of Plaintiff’s past due benefits withheld by Defendant.

(Id.)

Defendant filed a response to Petitioner’s Petition and does not oppose Petitioner’s request. (ECF
No. 32 at 1.) Both Petitioner and Defendant agree that if Petitioner is awarded attorney’s fees
under § 406(b)(1), Petitioner should remit to Plaintiff the attorney’s fees Counsel previously
received under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (See ECF No. 31 at 1,
ECF No. 32 at 2.)
Under § 406(b)(1), a district court may award fees to a successful Social Security benefits
claimant’s lawyer for his representation before the court. (“Whenever a court renders a judgment
1

Pursuant to Federal Rule of Civil Procedure 25(d), Andrew Saul is substituted for Nancy Berryhill
as the named defendant because he became Commissioner of the Social Security Administration on
June 17, 2019.
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0:16-cv-03204-JMC

Date Filed 07/29/20

Entry Number 34

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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 the claimant is entitled by reason of such
judgment[.]”). In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court clarified the
legal framework to be used for awarding attorney’s fees under § 406(b)(1) for the successful incourt representation of a claimant who signed a contingent-fee agreement. It held that when the
contingency fee agreement and requested fee do not exceed 25% of the past-due benefits, “the
attorney for the successful claimant must show that the fee sought is reasonable for the services
rendered.” Id. at 807. The Court did not provide a definitive list of factors to be considered
because it recognized that the “[j]udges of our district courts are accustomed to making
reasonableness determinations in a wide variety of contexts.” Mudd v. Barnhart, 418 F.3d 424,
428 (4th Cir. 2005) (citing Gisbrecht, 535 U.S. at 808). Nevertheless, it noted that 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. (citing Gisbrecht, 535 U.S. at 807).
After reviewing Petitioner’s Petition and Plaintiff’s First Motion for Attorney Fees (ECF
No. 20), the court concludes that Petitioner’s request for attorney’s fees is reasonable. Counsel
successfully represented Plaintiff before the court, there is no evidence of substandard attorney
services, and the amount of the award is not extraordinarily large in comparison to the amount of
time Counsel spent on the case. (See ECF No. 20.) Therefore, the court orders Defendant to
certify and release the remaining $29,978.00 of the past-due benefits to Petitioner.

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Date Filed 07/29/20

Entry Number 34

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Petitioner previously received fees under the EAJA in the amount of $6,000.00. (See ECF
No. 24, ECF No. 31.) When fees are awarded under both the EAJA and § 406(b)(1), the claimant’s
attorney must refund to the claimant the amount of the smaller fee. See Gisbrecht, 535 U.S. at 807.
Therefore, the court orders Petitioner to refund these funds to Plaintiff in full.
The court GRANTS Petitioner’s Petition for Attorney’s Fees (ECF No. 31). The court
awards Petitioner $29,978.00 in attorney’s fees under § 406(b)(1) and orders Petitioner to remit to
Plaintiff the fee previously awarded under the EAJA in the amount of $6,000 immediately after
receipt of the fees collected under § 406(b)(1).
IT IS SO ORDERED.

United States District Judge
July 29, 2020
Columbia, South Carolina

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