Monlux v. Astrue

Filing 24

ORDER granting 21 Motion for Attorney Fees. Signed by US Magistrate Judge John E. Simko on 4/26/13. (SLW)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

APR 2 6 2013

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ROBERT B. MONLUX,
CIV. 11-4180
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Plaintiff,
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ORDER
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(Doc. 21, Motion for Attorney's Fees)
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CAROLYN COLVIN,
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Commissioner of Social Security,
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Defendant.
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-vs­

Pending is Attorney Steven Pfeiffer's Motion for Attorney's fees pursuant to 42 U.S.C. §
406(b). (Doc. 21). Pfeiffer has submitted an Affidavit (Doc. 21-1); the SSA Notice ofAward (Doc.
21-2); a billing statement (Doc. 21-3); and a copy of Plaintiff Robert Monlux's fee agreement with
Pfeiffer (Doc. 21-4); along with a Memorandum in support ofthe Motion. Doc. 22. The Defendant
has indicated it does not object. Doc. 23.

BACKGROUND
Pfeiffer represented Monlux in Monlux's claim for Social Security Disability benefits.
Pfeiffer's legal representation in federal court began in September, 2010 and spanned two civil
actions (Civ. 10-4161 in addition to the instant action). Pfeiffer was ultimately successful in
obtaining a reversal of the Commissioner's decision denying benefits. The result is $82,304.92 in
past-due benefits for Monlux. Pursuant to 42 U.S.C. § 406(b) and the fee agreement between
Pfeiffer and Monlux, Pfeiffer now requests court authorization of attorney's fees in the amount of
25% ofMonlux's past-due benefits, or $20,576.23. Upon payment ofthe requested amount, Pfeiffer
will refund to Monlux the amounts Pfeiffer has already been awarded in attorney's fees pursuant to
the EAJA. J

Pfeiffer has already been awarded attorney's fees pursuant to the EAJ A in Civ. 10-4161
and in this action. See Doc. 27 in Civ. 10-4161 and Doc. 20 in this action.
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DISCUSSION

Pursuant to 42 U.S.C. § 406(b), a social security claimant who is represented by an attorney
and receives a favorable judgment may, as part ofthatjudgment, be awarded a "reasonable" attorney
fee "not in excess of25 percent ofthe total ofthe past-due benefits to which the claimant is entitled
by reason of such judgment."

The United States Supreme Court has clarified that § 406(b)'s

language "does not exclude contingent fee contracts that produce fees no higher than the 25 percent
ceiling." Gisbrecht v. Barnhart, 535 U.S. 789, 800,122 S.Ct. 1817, 1824,152 L.Ed.2d 996 (2002).
Rather, § 406(b) calls for court review of such arrangements as an independent
check, to assure that they yield reasonable results in particular cases. Congress has
provided one boundary line: Agreements are unenforceable to the extent they provide
for fees exceeding 25 percent of the past-due benefits. Within the 25 percent
boundary ...the attorney for the successful claimant must show that the fee sought
is reasonable for the services rendered.

[d. 535 U.S. at 807, 122 S.Ct. at 1828. Factors to consider to determine the reasonableness of a
contingent fee agreement under § 406(b) are: (1) the character of the representation and the results
achieved; (2) whether the attorney was responsible for significant delay in the case; and (3) whether
the benefits are out of proportion to the amount of time spent on the case. [d.

In this case, Pfeiffer has submitted an affidavit indicating his usual non-contingent fee is

$200 per hour. When he wins a contingent case, he expects to receive more than his regular hourly
rate in order to compensate him for the risk of non-recovery involved in accepting a social security
case (which has already been administratively denied) on a contingent fee basis. If awarded his
requested 25% contingent fee amount of$20,576.23, Pfeiffer's equivalent hourly fee for the time
spent on Monlux's case will compute to $363.86 per hour, or 1.8 times his usual non-contingent
hourly rate. This hourly rate is comparable to recent §406(b) awards within this geographic area.

See e.g. Warden v. Astrue, 2012 WL 930799 (W.D. Mo) at *2 (contingency fee rate of$443.32 per
hour approved as reasonable); Casas v. Astrue, 2012 WL 5399646 (D. Neb.) at *3 (contingency fee
rate of$471.64 per hour approved as reasonable); Finney v. Astrue, 2011 WL 96683 (W.D. Ark.)
at *2 (contingency fee rate of $354.64 per hour approved as reasonable).

Applying the factors

articulated in Gisbrecht. I find Pfeiffer's request for attorney's fees pursuant to his agreement with
Monlux to be reasonable.

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Therefore, IT IS ORDERED:
(1)

Pfeiffer's Motion for Attorney's Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 21) is
GRANTED;

(2)

The Commissioner is directed to pay Pfeiffer $20,576.23 in attorney's fees and to
release the balance of past-due benefits to Monlux;

(3)

Upon receipt of the § 406(b) attorney fee award, Pfeiffer is directed to refund all
EAJA attorney fees received Civ. 10-4161 and in this case to Monlux.

Dated this

~ day of April, 2013.

BY THE COURT:

John E.
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United St tes Magistrate Judge
ATTEST:

JOSEPH HAAS, Clerk

By,

£n.rm I~,

Deputy

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