Fennell v. Commissioner of the Social Security Administration

Filing 42

ORDER granting 40 Motion for Attorney Fees per Rule 406b. It is ordered that the Commissioner pay reasonable attorney fees totaling $25,128 to be drawn out of the 25% amount withheld from the plaintiff's past -due benefits. As this court has already awarded attorney fees to Ms. Whitten under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) in the amount of $6,536, plaintiff's counsel must refund that amount ($6,536) to the plaintiff. Signed by Honorable Joseph F Anderson, Jr on 6/26/2012.(gnan, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Joseph W. Fennell,

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Plaintiff,
v.

C/A No.: 4:09-3051-JFA

ORDER

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Michael J. Astrue,
Commissioner of Social Security,

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Defendant.
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This matter is before the court upon motion of the plaintiff’s counsel, Beatrice
Whitten, for attorney fees (ECF No. 40) under the Social Security Act, 42 U.S.C. § 406(b).
Counsel has submitted copies of the Notice of Award from the Commissioner and the signed
Fee Agreement of the plaintiff. The Commissioner has responded to the motion indicating
that he does not oppose the fee request.
Plaintiff’s counsel petitions the court for approval of a court-related fee in the amount
$25,128 pursuant to the terms of a written contingent-fee agreement with the plaintiff. That
contingent-fee agreement provides, in pertinent part, for the payment of attorney fees in the
amount of 25% of all past-due benefits recovered. The actual amount withheld by the
Commissioner was $25,128.
In the United States Supreme Court case of Gisbrecht v. Barnhart, 535 U.S. 780
(2002), the Court held that the provision of the Social Security Act limiting attorney fees to
25% of past-due benefits does not displace contingent-fee agreements that are within such
statutory ceiling, and instructs courts to review for reasonableness fees yielded by such
agreements.
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Upon review of the material submitted to the court, the undersigned finds that plaintiff
counsel’s request for attorney fees is reasonable. Therefore, it is ordered that the
Commissioner pay reasonable attorney fees totaling $25,128 to be drawn out of the 25%
amount withheld from the plaintiff’s past-due benefits.
As this court has already awarded attorney fees to Ms. Whitten under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) in the amount of $6,536, plaintiff’s
counsel must refund that amount ($6,536) to the plaintiff. See Gisbrecht at 796.
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

June 26, 2012
Columbia, South Carolina

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