Garcia v. Colvin
Filing
33
Memorandum Opinion and Order re: 27 Plaintiff's Motion for Award of Attorney Fees Pursuant to 42 USCA § (406(b)(1)(A) of the Social Security Act; and 31 Plaintiff's Supplement to Plaintiff's Motion for Award of Attorney Fees Pursuant to 42 USCA § (406(b)(1)(A) of the Social Security Act. Based on the relevant findings, evidence, and applicable law, the motion is GRANTED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 10/22/2018) (mcrd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TIMMY GARCIA,
Plaintiff,
v.
CAROLYN COLVIN, ACTING,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Civil Action No. 3:14-CV-4204-BH
MEMORANDUM OPINION AND ORDER
By consent of the parties and the order of transfer dated February 17, 2015, this case has
been transferred for all further proceedings and entry of judgment. Before the Court is Plaintiff’s
Motion for Award of Attorney Fees Pursuant to 42 USCA § (406(b)(1)(A) of the Social Security Act,
filed May 11, 2018 (doc. 27), and Plaintiff’s Supplement to Plaintiff’s Motion for Award of Attorney
Fees Pursuant to 42 USCA § (406(b)(1)(A) of the Social Security Act, filed July 27, 2018 (doc. 31.).
Based on the relevant findings, evidence, and applicable law, the motion is GRANTED.
I. BACKGROUND
On August 5, 2011, Timmy Garcia (Plaintiff) filed a complaint seeking judicial review of
a final decision by the Acting Commissioner of Social Security (Commissioner) ceasing his
Disability Insurance Benefits (DIB) under Title II of the Social Security Act.1 The court ruled in
favor of Plaintiff and remanded the case to the Administrative Law Judge (ALJ) for further
proceedings.2 Plaintiff then moved for, and was awarded, attorney’s fees under the Equal Access
1
Garcia v. Commissioner of the Social Security Administration, No. 3:11-CV-1934-B (N.D. Tex. 2011) (J.
2
See id. (doc. 21).
Boyle).
to Justice Act (EAJA) in the amount of $5,920.00.3
On remand, the Commissioner issued a second decision denying Plaintiff’s claim for DIB.
(See doc. 23 at 3.)4 On November 25, 2014, Plaintiff timely appealed the Commissioner’s second
decision under 42 U.S.C. § 405(g). (See doc. 1.) On March 31, 2016, the Commissioner’s decision
was affirmed in part and reversed in part, and the case was remanded back to the ALJ for further
proceedings. (docs. 23, 24.) Plaintiff subsequently moved for an award of attorney’s fees under the
EAJA. (doc. 25.) The Commissioner did not object to the motion and Plaintiff was granted EAJA
attorneys’ fees in the amount of $3,533.24. (doc. 26.)
On remand, the Commissioner rendered a decision in favor of Plaintiff and awarded past-due
benefits. (doc. 27 at 1.) As provided by a contingency fee agreement, Plaintiff seeks approval under
§ 406(b) of the Social Security Act to pay his attorney $20,500.00 in fees, which represents 25% of
the past-due benefits he received. (doc. 27 at 9, 11.) The Commissioner’s only objection is that
without the Notice of Award (NOA), there is insufficient proof to show that the requested amount
for attorney’s fees is actually 25% of the past-due benefits Plaintiff received. (doc. 29 at 4.) On July
27, 2018, Plaintiff filed a supplement to the motion for the award of attorney’s fees and attached a
copy of the NOA. (doc. 31 at 4-8.) The Commissioner did not file a response to the supplement.
The application for attorney’s fees is now ripe for determination.
II. ANALYSIS
“Sections 406(a) and 406(b) of the Social Security Act provide for the discretionary award
of attorney’s fees out of the past-due benefits recovered by a successful claimant in a Social Security
3
See id. (docs. 22, 23).
4
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.
2
action.” Murkeldove v. Astrue, 635 F.3d 784, 787 (5th Cir. 2011). While § 406(a) governs the award
of attorney’s fees for representing a claimant in administrative proceedings, § 406(b) governs the
award of attorney’s fees for representing a claimant in court. Gisbrecht v. Barnhart, 535 U.S. 789,
794 (2002). Section 406(b) provides:
Whenever a court renders a judgment favorable to a claimant under this subchapter
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); see also Murkeldove, 635 F.3d at 788 (citing Gisbrecht, 535 U.S. at 800).
Contingency fee agreements in social security cases are unenforceable to the extent that they provide
for fees exceeding 25% of past-due benefits. Gisbrecht, 535 U.S. at 807. Even when contingency
fee agreements are within the statutory ceiling, Ҥ 406(b) calls for court review of such arrangements
as an independent check, to assure that they yield reasonable results in particular cases.” See
Gisbrecht, 535 U.S. at 807.
The reasonableness of attorney’s fees awarded under a fee-shifting statute is generally
determined by using the lodestar method.5 Jeter v. Astrue, 622 F.3d 371, 378 n.1 (5th Cir. 2010)
(citing Gisbrecht, 535 U.S. at 801). Noting that § 406(b) is not a fee-shifting statute, however, the
Supreme Court has explicitly rejected the use of the lodestar method as the starting point in
determining the reasonableness of a fee under this statute. See Gisbrecht, 535 U.S. at 801. Instead,
“lower courts [are] to give the contingency fee agreement ‘primacy’”, although this will “in some
instances result in an excessively high fee award.” Jeter, 622 F.3d at 379. Gisbrecht acknowledged
5
This method consists of multiplying a reasonable number of hours by a reasonable hourly rate. Raspanti v.
Caldera, 34 F. App’x 151 (5th Cir. 2002); Sandoval v. Apfel, 86 F. Supp. 2d 601, 615-16 (N.D. Tex. 2000) (citations
omitted).
3
that “[i]f the benefits [resulting from a contingency fee agreement] are large in comparison to the
amount of time counsel spent on the case, a downward adjustment is . . . in order [to disallow
windfalls for lawyers].” Gisbrecht, 535 U.S. at 808. The Fifth Circuit has interpreted this language
to mean that courts may still employ the lodestar method in determining whether a contingency fee
constitutes a windfall, but only if they “articulate additional factors demonstrating that the
excessively high fee would result in an unearned advantage.” Jeter, 622 F.3d at 380. For instance,
a court may consider a reasonable hourly rate in its “windfall” assessment, “so long as this
mathematical calculation is accompanied by consideration of whether an attorney’s success is
attributable to his own work or instead to some unearned advantage for which it would not be
reasonable to compensate him.” Id.
The Fifth Circuit has not prescribed an exhaustive list of factors to consider in determining
whether a fee award is unearned. Jeter, 622 F.3d at 380. It has noted with approval several factors
considered by lower courts, including “risk of loss in the representation, experience of the attorney,
percentage of the past-due benefits the fee constitutes, value of the case to a claimant, degree of
difficulty, and whether the client consents to the requested fee.” Id. at 382 (citing Brannen v.
Barnhart, No. l:99-CV-325, 2004 WL 1737443, at *5 (E.D. Tex. July 22, 2004)). The claimant’s
attorney bears the burden of persuasion on the reasonableness of the fees sought. See Gisbrecht, 535
U.S. at 807 n.17.
With regard to the first factor, courts have consistently recognized that “there is a substantial
risk of loss in civil actions for social security disability benefits.” Charlton v. Astrue, No. 3:10-CV056-O-BH, 2011 WL 6325905, at *4 (N.D. Tex. Nov. 22, 2011) (noting that on average only 35
percent of claimants who appealed their case to federal court received benefits), adopted, 2011 WL
4
6288029 (N.D. Tex. Dec. 14, 2011); see also Hartz v. Astrue, No. 08-4566, 2012 WL 4471846, at
*6 (E.D. La. Sept. 12, 2012) (collecting cases), adopted, 2012 WL 4471813 (E.D. La. Sept. 27,
2012). Here, counsel faced a substantial risk of loss, as Plaintiff had lost at all levels of the
administrative proceedings. (See doc. 23 at 1-3.) The resulting hourly rate of $500.00 ($25,550.00
divided by 51 hours of attorney work devoted to the case) falls well below amounts that have been
approved by courts as reasonable. See, e.g., Sabourin v. Colvin, No. 3:11-CV-2109-M, 2014 WL
3949506, at *1-2 (N.D. Tex. Aug. 12, 2014) (finding that the “de facto hourly rate of $1,245.55 per
hour” did not constitute an unearned windfall but was fair compensation for attorney’s fees under
§ 406(b)); Prude v. U.S. Comm’r, Soc. Sec. Admin., No. 11-CV-1266, 2014 WL 249033, at *2 (W.D.
La. Jan. 22, 2014) (finding that the resulting hourly fee of $937.50 was reasonable in light of factors
“such as the few attorneys in the area who will handle a disability appeal,” “the lack of
compensation in the many unsuccessful cases,” and the fact that the fee was “not attributable to
anything other than the attorney’s own work”); Taylor v. Comm’r, Soc. Sec. Admin., No.
6:09-CV-189, 2013 WL 3357936, at *2 (E.D. Tex. July 1, 2013) (finding that the resulting hourly
rate of $651.62 was reasonable); Neal v. Colvin, No. 3:09-CV-522-N -BH, 2013 WL 5786268, at
*3 (N.D. Tex. Oct. 28, 2013) (approving of the resulting $512.82 hourly rate as reasonable). The
resulting hourly rate requested here is reasonable.
Moreover, counsel provided effective and efficient representation, expending over 22 hours
drafting a 22-page appellate brief and an 11-page reply brief in the first federal case, and expending
over 13 hours drafting a 21-page appellate brief and an 11-page reply brief in the second federal
case. (See docs. 20, 22, 27 at 13-15.) Given the multiple denials at the administrative level, the
attorney’s success in both appeals and subsequent administrative hearings appears to be attributable
5
to his own work. The contingency fee requested in this case represents exactly 25% of the past-due
benefits awarded to Plaintiff. (See doc. 31 at 1, 6.) Finally, while certainly not determinative, the
existence of a contingency fee agreement indicates that Plaintiff consented to the payment of a 25%
fee. (doc. 27 at 11.) See Jeter, 622 F.3d at 381–82; Hartz, 2012 WL 4471846, at *6.
After weighing the relevant factors, the Court finds that the requested contingency fee award
in the amount of $25,550.00 is reasonable.6
III. CONCLUSION
Plaintiff’s motion is GRANTED, and his counsel is awarded $25,500.00 in attorney’s fees
out of Plaintiff’s past-due benefits pursuant to 42 U.S.C. § 406(b).
SO ORDERED this 22nd day of October, 2018.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
6
As noted, Plaintiff’s counsel was previously awarded fees pursuant to EAJA in both federal cases. (See doc.
26; No. 3:11-cv-1934-B, Docket Entry No. 23.) He is required to “refund to [Plaintiff] the amount of the smaller fee.”
Gisbrecht, 535 U.S. at 796. Here, Plaintiff’s counsel represents that he will properly reimburse Plaintiff the $174.00 that
he received under the EAJA directly. (See doc. 27 at 12.)
6
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