Keffer v. Commissioner of Social Security Administration

Filing 25

ORDER granting in part 19 Motion for Attorney Fees, awarding $9,167 in attorney fees. Signed by Magistrate Judge Shiva V. Hodges on 1/6/2022. (mmcd)

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Date Filed 01/06/22

Entry Number 25

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Ruth Ann Keffer,
Plaintiff,
vs.
Kilolo Kijakazi, Acting
Commissioner of the Social
Security Administration,
Defendant.

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C/A No.: 1:20-1801-SVH

ORDER

This matter is before the court on the motion of counsel for Plaintiff for
fees under 42 U.S.C. § 406(b). [ECF No. 19]. On January 5, 2021, the court
reversed the Commissioner’s decision that had denied Plaintiff’s claim for
social security disability benefits and remanded the case for further
administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
[ECF No. 17]. The Commissioner subsequently awarded Plaintiff total pastdue benefits in the amount of $48,668. [ECF No. 19-4]. On December 13,
2021, counsel requested the court authorize a fee in the amount of $12,167,
which represents 25% of past-due benefits resulting from the claim, as agreed
to by Plaintiff in a contingent fee agreement dated April 10, 2019. [ECF Nos.
19 and 19-3 at 2–3]. The Commissioner subsequently filed a response
representing she was not the real party in interest and deferring to the

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court’s discretion as to whether the request for attorney fees was reasonable
under the law. [ECF No. 20].
On December 22, 2021, the court issued an order noting Plaintiff’s
counsel had represented in the motion that “[o]nce the fees requested
[pursuant to 42 U.S.C. § 406(b)] in this case are approved,” he “will refund to
the claimant the amount previously awarded in EAJA fees upon the receipt of
those fees,” ECF No. 19-1 at 9, but that Plaintiff’s counsel had failed to
submit a petition for fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”), and that the time for submitting such a petition had
expired. [ECF No. 21]. The court requested Plaintiff’s counsel file a response
providing his reasons for declining to file an EAJA petition in the matter. Id.
Plaintiff’s counsel subsequently filed a reply indicating he had inadvertently
missed the deadline for filing an EAJA fee petition and “was prepared to act
in accord with the decision rendered by this Court regarding an award of
fees.” [ECF No. 23].
The court has considered counsel’s motion for fees under 42 U.S.C. §
406(b) and his subsequent response to the court’s order dated December 22,
2021, and approves the motion for fees of a reduced amount, as set forth
herein.

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I.

Date Filed 01/06/22

Entry Number 25

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Consideration of Motion for Attorney Fees Under 42 U.S.C. § 406(b)
When a court renders a favorable judgment to a claimant in a claim

brought against the Commissioner, the court may “determine and allow as
part of its judgment a reasonable fee” to the claimant’s attorney that is “not
in excess of 25 percent of the total of the past-due benefits to which the
claimant is entitled by reasons of such judgment.” 42 U.S.C. § 406(b)(1)(A).
The Supreme Court held in Gisbrecht v. Barnhardt, 535 U.S. 789 (2002), that
42 U.S.C. § 406(b) instructs courts to review contingent fee agreements for
reasonableness where the agreed-upon fee does not exceed the statutory
ceiling of 25%. Nevertheless, the contingent fee may be reduced from the
agreed-upon amount “when (1) the fee is out of line ‘with the character of the
representation and the results . . . achieved,’ (2) counsel’s delay caused pastdue 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. Barnhardt, 418 F.3d 424, 427 (4th Cir. 2005),

citing Gisbrecht at 808.
Counsel filed a copy of the contingent fee agreement, signed by
Plaintiff, which provides in relevant part: “If it is necessary to file an appeal
in the Federal Court, the six thousand ($6,000.00) Dollar fee limitation shall
not apply, and the agreed upon fee shall be twenty-five percent of all past due
benefits, whether Title II, Title XVI, or a combination of the two.” [ECF No.
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19-3 at 2–3]. Because the agreed-upon fee does not exceed the statutory
ceiling of 25% set forth in Gisbrecht, the court considers only the
reasonableness of the fee.
The court determines that counsel did not cause any delays that
affected the accumulation of past-due benefits during the pendency of the
case in this court. A review of the docket shows the Commissioner filed the
answer and administrative transcript on October 15, 2020, making Plaintiff’s
brief due by November 16, 2020. [ECF Nos 13, 14]. Plaintiff’s counsel filed a
brief out of time on November 17, 2020. [ECF No. 15]. However, his one-day
delay did not affect the accumulation of past-due benefits.
The court finds that the requested fee is not large in comparison to the
amount of time counsel spent on the case. Plaintiff’s counsel asserts that he
represented the claimant for 30.15 hours. [ECF No. 19-1 at 9]. The requested
fee is consistent with an hourly rate of $403.55, which exceeds the standard
rate of $180 per hour that he references in his motion. See id. However, “[i]f
the fee approved for [] counsel was limited to the hourly rate an attorney
could earn without the risk of a contingency fee . . . ‘plaintiffs may find it
difficult to obtain representation.’” Duval v. Colvin, C/A No. 5:11-577-RMG,
2013 WL 5506081, at *1 (D.S.C. Sept. 30, 2013) (quoting In re Abrams &

Abrams, P.A., 605 F.3d 238, 246 (4th Cir. 2010)). Because counsel accepted
representation along with the risk of no payment, a resulting fee that exceeds
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his hourly non-contingent rates is not unreasonable and does not result in a
windfall.
The results achieved in this matter weigh in favor of the requested fee.
Plaintiff’s counsel provided exemplary representation in raising meritorious
arguments in the brief he filed with the court. See ECF No. 15. As a result,
the court found the Administrative Law Judge (“ALJ”) had erred in
evaluating Plaintiff’s subjective allegations and assessing her residual
functional capacity, reversed the ALJ’s decision, and remanded the case for
further administrative proceedings. See ECF No. 17. Counsel presumably
provided excellent representation to Plaintiff at the administrative level, as
well, given an award of total past due benefits of $48,668 for a period
beginning in August 2016, as well as continuing monthly benefits and
Medicare coverage. See ECF No. 19-4.
Nevertheless, this court considers it appropriate to reduce the amount
of Plaintiff’s counsel’s fee based on the character of the representation and
results achieved, as it was substandard representation for him to neglect to
file an EAJA fee petition. “Courts that approach fee determinations by
looking

first

to

the

contingent-fee

agreement,

then

testing

it

for

reasonableness, have appropriately reduced the attorney’s recovery based on
the character of the representation and the results the representative
achieved. Gisbrecht, 535 U.S. at 808 (citing McGuire v. Sullivan, 873 F.2d
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974, 983 (7th Cir. 1989) (“Although the contingency agreement should be
given significant weight in fixing a fee, a district judge must independently
assess the reasonableness of its terms.”); Lewis v. Secretary of Health and

Human Servs., 707 F.2d 246, 249–50 (6th Cir. 1983) (instructing reduced fee
when representation is substandard)).
Under the EAJA, a court shall award reasonable attorney’s fees to a
prevailing party in certain civil actions against the United States unless the
court finds that the government’s position was substantially justified or that
special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The
eligibility requirements for an award of fees under the EAJA are: (1) that the
claimant is a prevailing party; (2) that the government’s position was not
substantially justified; (3) that no special circumstances make an award
unjust; and (4) that the fee application be submitted to the court within 30
days of final judgment and be supported by an itemized statement. See

Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). The “EAJA requires
prevailing parties seeking an award of fees to file with the court, ‘within

thirty days of final judgment in the action,’ an application for fees and other
expenses.” Melkonyan v. Sullivan, 501 U.S. 89, 103 (1991) (emphasis in
original), citing 28 U.S.C. § 2412(d)(1)(B). In Melkonyan, 501 U.S. at 102, the
Supreme Court clarified that for cases remanded pursuant to sentence four of
42 U.S.C. § 405(g) “the filing period begins after the final judgment
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(‘affirming, modifying, or reversing’) is entered by the court and the appeal
period has run, so that the judgment is no longer appealable.” For actions in
which a United States agency is a party, Fed. R. App. P. 4(a)(1)(B) provides
that a notice of appeal may be filed within 60 days after entry of the
judgment. Thus, an EAJA fee petition must be filed within 90 days of the
court’s order reversing the Commissioner’s decision and the entry of
judgment, provided no appeal is filed.
This court issued an order reversing the decision of the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the matter for
further administrative proceedings on January 5, 2021, and the Clerk of
Court entered a judgment the same day. See ECF Nos 17, 18. Because the
Commissioner did not appeal the court’s decision, it became effective on
March 8, 2021. 1 Thus, Plaintiff’s counsel was required to submit an EAJA fee
petition by April 7, 2021. Counsel does not maintain the conditions for an
award of an EAJA fee were not met, but concedes he “inadvertently missed”
the deadline to file an EAJA fee petition in this matter. See ECF No. 23.
The contingent fee agreement between Plaintiff and counsel addresses
EAJA fees as follows:
I acknowledge that a federal court may award my attorney a
reasonable fee under the Equal Access to Justice Act (“EAJA”), in
The 60-day period expired on Saturday, March 6, 2021, giving the
Commissioner until Monday, March 8, 2021 to file an appeal. See Fed. R. Civ.
P. 6(a)(1)(C).

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which event such award shall be payable to my attorney and
retained by my attorney to the extent permitted by law, and I
shall not be entitled to any such award and assign said award to
my attorney and authorize him to endorse my signature upon any
check representing payment of an attorney’s fee under the EAJA;
provided, however, that I may be entitled to a credit for such fee
in the event my attorney is awarded an additional fee for federal
court services under 42 U.S.C. § 406(b).
[ECF No. 19-3 at 2]. Thus, it specifically provides that Plaintiff may be
credited for an EAJA fee if an attorney fee is awarded pursuant to § 406(b).
This is consistent with Gisbrecht, 535 U.S. at 789, in which the Supreme
Court noted fee awards may be made under both the EAJA and § 406(b), “but
the claimant’s attorney must refund to the claimant the amount of the
smaller fee, up to the point the claimant receives 100 percent of past-due
benefits.” This court routinely approves 25% contingency fees pursuant to §
406(b) and orders counsel to refund to the plaintiff the amount of the EAJA
fee previously received. See, e.g., Jackson v. Saul, C/A No. 1:19-2683-SVH,
2020 WL 7055515 (D.S.C. Dec. 2, 2020); Walling v. Berryhill, C/A No. 4:153246-TLW, 2019 WL 1557674 (D.S.C. Apr. 10, 2019); Vinson v. Colvin, C/A
No. 4:14-3754-TER, 2016 WL 2853564 (D.S.C. May 16, 2016).
A review of the record suggests that if Plaintiff’s counsel had filed a
motion for attorney fees pursuant to the EAJA, the court would have granted
the motion, as Plaintiff was the prevailing party, the government’s position
was not substantially justified, and no special circumstances make an award
unjust. See 28 U.S.C. § 2412(d)(1)(A); Crawford v. Sullivan, 935 F.2d 655, 656
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(4th Cir. 1991). Given the terms in the parties’ contingent agreement, the
Supreme Court’s direction in Gisbrecht, and this court’s prior precedent,
counsel would have been required to credit Plaintiff for the amount the court
awarded pursuant to the EAJA. However, because counsel failed to file a
motion for attorney fees pursuant to the EAJA, the court cannot order
counsel to refund the EAJA fee to Plaintiff.
In Redden v. Celebrezze, 370 F.2d 373, 376 (4th Cir. 1966), the Fourth
Circuit noted “judges should constantly remind themselves that, while the
lawyer is entitled to a reasonable compensation for the services rendered by
him in the judicial proceeding, these benefits are provided for the support and
maintenance of the claimant and his dependents and not for the enrichment
of members of the bar.” Because counsel’s omission resulted in reduced funds
to compensate him for his services and to support and maintain the disabled
Plaintiff, it is appropriate for the court to reduce counsel’s fee to offset the
reduced funds available.
Counsel’s itemized statement of time reflects total time of 30.15 hours,
but only 19.5 hours of his time would be applicable to calculation of a fee
pursuant to the EAJA. 2 See ECF No. 19-2. Based on the standard rate of
$180 per hour counsel references in his memorandum, it appears he would
have likely requested an EAJA fee of $3,510. See ECF No. 19-1 at 9.
Counsel also itemizes time expended at the administrative level and time
spent preparing the § 406(b) petition. See ECF No. 19-2.
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However, attorney fees requested pursuant to the EAJA are often reduced by
the court or pursuant to the parties’ stipulations, such that the court would
have reasonably approved an attorney fee of $3,000. Therefore, the court
finds it appropriate to award counsel a fee of $9,167 under 42 U.S.C. § 406(b),
representing a reduction of $3,000 from the maximum contingent fee.
In light of the foregoing, the court grants Plaintiff’s counsel’s motion for
fees under 42 U.S.C. § 406(b), but approves a reduced attorney fee of $9,167.
The Commissioner is ordered to remit to counsel an attorney fee of $9,167
and to return to Plaintiff the amount of $3,000, representing the difference
between the $12,167 withheld from her past-due benefits to pay an attorney
fee and the approved attorney fee of $9,167.
IT IS SO ORDERED.
January 6, 2022
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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