Britzius v. Commissioner of Social Security Administration
ORDER granting 21 Motion for Attorney Fees per Rule 406b Signed by Magistrate Judge Jacquelyn D Austin on 2/2/2017.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Rebecca F Britzius,
Nancy A. Berryhill ,
Commissioner of Social Security,
Case No. 8:15-cv-02111-JDA
This matter is before the Court on Plaintiff’s motion for attorney’s fees pursuant to
42 U.S.C. § 406(b). [Doc. 21-1.]
For the successful representation of Plaintiff by
Robertson H. Wendt, Jr., in the underlying Social Security benefits action, Plaintiff’s
counsel seeks attorney’s fees in the total amount of $17,695.70, which represents 25% of
the total award of past-due benefits. [Id.] The Commissioner does not object to Plaintiff’s
motion for attorney’s fees, but clarifies that the fees are for court time only. [Doc. 22.]
Based upon a review of the motion and the factors to be considered in awarding
attorney’s fees in a Social Security case, the Court finds an award of $17,695.70 is
reasonable. Section 406(b) caps an attorney’s fee award at 25% of the claimant’s
past-due benefits. Additionally, as an independent check, § 406(b) directs courts to review
contingency fee agreements to ascertain that an agreement yields a reasonable result in
a particular case.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
On January 20, 2017, Nancy A. Berryhill was named the Acting Commissioner
of Social Security. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin
as the defendant in this suit.
contingency fee agreements in Social Security cases must meet two requirements: (1) the
fee must not exceed 25% of the claimant’s past-due benefits, and (2) the fee must be
In Gisbrecht, the United States Supreme Court did not provide factors to assess the
reasonableness of a contingency fee agreement but stated that district court judges “are
accustomed to making reasonableness determinations in a wide variety of contexts, and
their assessments in such matters, in the event of an appeal, ordinarily qualify for highly
respectful review.” Id. at 808. 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
Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005) (quoting Gisbrecht, 535 U.S. at 808).
The contingency fee agreement between Plaintiff and Plaintiff’s counsel provided
for attorney’s fees in the amount of 25% of any past-due benefits and therefore complies
with § 406(b)(1)(A). [Doc. 21-3 at 1.] Further, the requested attorney’s fee is reasonable
because of the skill required of Plaintiff’s counsel in this case, the amount of time spent on
the case, Plaintiff’s counsel’s experience in Social Security cases, and the favorable result
obtained for Plaintiff. The case required an attorney with in-depth knowledge of disability
law, and Plaintiff’s counsel spent 35.40 hours on this case between the administrative level
proceeding and the action before this Court [Doc. 21-1]—without any undue delays causing
benefits to accumulate. Plaintiff’s counsel obtained a favorable result for his client. [Doc.
21-4.] As a result, Plaintiff’s counsel’s fee is reasonable and does not warrant reduction
for the reasons articulated in Gisbrecht.
Therefore, it is ORDERED that the motion for attorney’s fees is GRANTED and
Plaintiff’s counsel is awarded attorney’s fees in the amount of $17,695.70 pursuant to
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
February 2, 2017
Greenville, South Carolina
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