Boulware v. Commissioner of the Social Securit Administration
Filing
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ORDER granting Plaintiff's motion [ECF #32] for attorney fees under 42 U.S.C. § 406(b)(1), in the amount of $28,350.00. Plaintiff's counsel must refund his EAJA fee award of $5,025.50 to the Plaintiff. Signed by Honorable R Bryan Harwell on 1/6/2016.(gnan )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Cathie Cooler Boulware,
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Plaintiff,
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v.
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Carolyn W. Colvin, Acting
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Commissioner of Social Security,
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Defendant.
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______________________________)
Civil Action No.: 4:13-cv-03597-RBH
ORDER
This matter is before the Court on Plaintiff’s motion [ECF #32] for attorney fees under 42
U.S.C. § 406(b)(1). Plaintiff’s counsel requests an attorney fee award of $34,463.98, which
represents 25% of the past due benefits for Plaintiff. Plaintiff’s counsel previously received an
attorney fee award under the Equal Access to Justice Act (“EAJA”), 42 U.S.C. § 2412, in the
amount of $5,025.50. Plaintiff’s counsel agrees that any attorney fees awarded under § 406(b)(1)
are subject to offset by a previous EAJA attorney fee award and the lesser of the two amounts must
be refunded to the plaintiff.
Title 42 U.S.C. § 406(b)(1)(A) provides that “[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 the claimant is entitled by reason of such
judgment.” 42 U.S.C. § 406(b)(1)(A). In Gisbrecht v. Barnhart, the Supreme Court held that §
406(b) sets a statutory ceiling for attorney fees in social security cases of 25 percent of past-due
benefits and calls for court review of contingency fee agreements to assure that the agreement yields
reasonable results in particular cases. 535 U.S. 789, 807 (2002). Contingency fee agreements are
unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.
Gisbrecht, 535 U.S. at 807. When the contingency fee agreement and requested fee do not exceed
25 percent of the past-due benefits, “the attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.” Id. Even where the requested fee does not exceed
25 percent of past-due benefits, “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) pastdue benefits ‘are large in comparison to the amount of time counsel spent on the case’” (i.e., the
“windfall” factor). Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005) (citing Gisbrecht, 535 U.S.
at 808).
In considering whether plaintiff’s counsel would receive a “windfall” from the contingency
fee agreement, the Court is mindful of the fact that “contingency fees provide access to counsel for
individuals who would otherwise have difficulty obtaining representation.” In re Abrams & Abrams,
P.A., 605 F.3d 238, 245 (4th Cir. 2010). As the district court noted in Wilson v. Astrue,
there are occasions in the practice of representing claimants where
a 25 percent contingent fee agreement is reached between the
claimant and counsel, but no fee is awarded because of the result
achieved in the case. Thus, adherence to the 25 percent contingent
fee allowed by statute in a successful case such as this one
recognizes the realities facing practitioners representing social
security claimants and sustains those practitioners so as to allow
them to continue to make their services available to other
claimants.
622 F. Supp. 2d 132, 136-37 (D.Del. 2008); see also Gisbrecht, 535 U.S. at 804 (recognizing that
“the marketplace for Social Security representation operates largely on a contingency fee basis”).
Defendant does not dispute Plaintiff’s counsel’s entitlement to an attorney fee but argues
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that the requested amount of $34,463.98 should be reduced to some extent. Defendant argues that
considering the 28.35 hours of attorney time spent in this case, the requested fee of $34,463.98
represents an hourly rate of $1,215.66, and constitutes an impermissible windfall.
Plaintiff and Plaintiff’s counsel entered into a contingency fee agreement dated December
12, 2013, which provided that if the Social Security Administration favorably decides Plaintiff’s
claims, Plaintiff agrees to pay counsel “a fee equal to the lesser of twenty-five (25) percent of the
past-due benefits . . .or six thousand ($6,000.00) Dollars . . . The six thousand dollar cap shall not
apply if an appeal is taken to the Federal Court.” [ECF# 32-2, at 2]. Plaintiff’s counsel obtained a
successful result for Plaintiff and obtained approximately $137,855.92 in past-due benefits. There is
no indication that counsel caused any unusual delays in the case. Nine days after Plaintiff’s counsel
filed his 38 page brief in support of Plaintiff’s appeal to the district court, Defendant filed a motion
to remand the case for further administrative proceedings. Therefore, the degree of representation in
federal court was somewhat abbreviated. The appeal to district court was not particularly complex
or novel as the issues presented are fairly common appellate issues in social security cases.
Plaintiff’s counsel has a specialized social security practice and regularly appears before this Court
on social security appeals. Plaintiff’s counsel achieved an excellent result for his client and
provided thorough and adequate representation.
However, considering the relatively small amount of time spent on the case and the lack of
novel or complex issues, the Court finds that Plaintiff’s requested fee of $34,463.98 should be
reduced to avoid an impermissible windfall. The Court finds that Plaintiff’s counsel’s requested fee
should be reduced to $28,350.00, which represents a generous effective hourly rate of $1,000.00. In
light of counsel’s specialized skill in social security disability cases and the result achieved in this
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case, an attorney fee award of $28,350.00 with an effective hourly rate of $1,000.00 is reasonable
and does not amount to a windfall. The Court notes that other district courts within the Fourth
Circuit have approved contingency fee agreements that produce similar hourly rate ranges in
successful social security appeals. See, e.g. Duvall v. Colvin, Civil Action No. 5:11-577-RMG, 2013
WL 5506081, at *1 (D.S.C. Sept. 30, 2013) (finding contingency fee agreement that produced an
effective hourly rate of $972.00 to be reasonable); Brown v. Barnhart, 270 F. Supp. 2d 769, 772
(W.D. Va. 2003) (approving contingency fee agreement with resulting hourly rate of $977.00);
Melvin v. Colvin, No. 5:10-cv-160-FL, 2013 WL 3340490, at *3 (E.D.N.C. July 2, 2013) (approving
contingency fee agreement with resulting hourly rate of $1,043.92); Claypool v. Barnhart, 294 F.
Supp. 22 829, 833 (S.D.W.Va. 2003) (approving contingency fee agreement with resulting hourly
rate of $1,433.12).
For the foregoing reasons, the Court GRANTS Plaintiff’s motion [ECF #32] for attorney
fees under 42 U.S.C. § 406(b)(1), as modified herein, in the amount of $28,350.00. Plaintiff’s
counsel must refund his EAJA fee award of $5,025.50 to the Plaintiff.1
IT IS SO ORDERED.
January 6, 2016
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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Plaintiff’s counsel was previously awarded a lesser amount of fees under the Equal Access to
Justice Act, 28 U.S.C. § 2412 (“EAJA”). [ECF# 31]. “Fee awards may be made under both [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 the past-due benefits.” Gisbrecht, 535 U.S. at 796 (internal
quotation marks and citation omitted). Accordingly, Plaintiff's counsel is to refund to the Plaintiff the
previously ordered EAJA fees immediately after he receives the payment of the § 406(b) fees.
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