Bonner v. Berryhill

Filing 27

Memorandum Opinion and Order granting 24 Plaintiff's Motion for Award of Fees Pursuant to 42 U.S.C. § 406(B). (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/23/2020) (mcrd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DARRION BONNER,
Plaintiff,
v.
ANDREW SAUL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Civil Action No. 3:17-CV-2866-BH

Consent1

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Award of Fees Pursuant to 42 U.S.C. § 406(B),
filed October 11, 2019. (doc. 24.) Based on the relevant filings and applicable law, the motion is
GRANTED.
I. BACKGROUND
On March 16, 2015, Darrion Bonner (Plaintiff) filed a complaint seeking reversal and
remand of the decision by the Commissioner of Social Security (Commissioner)2 to deny his claims
for disability insurance benefits under the Social Security Act. (doc. 1.)3 On March 6, 2019, the
Commissioner’s decision was reversed, and the case was remanded for further proceedings. (docs.
18, 19.) Plaintiff then moved for, and was awarded, attorney’s fees under the Equal Access to
Justice Act (EAJA) in the amount of $6,227.22. (docs. 22, 23.)
On remand, the Commissioner rendered a decision in favor of Plaintiff and awarded past-due

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By order dated February 5, 2018 (doc. 13), this social security appeal was referred for full case management.

2

At the time this appeal was filed, Nancy A. Berryhill was the Acting Commissioner of the Social Security
Administration, but Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019, so
he is automatically substituted as a party under Fed. R. Civ. P. 25(d).
3

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.

benefits in the amount of $54,053.50. (docs. 24-1 at 1; 24-3.) As provided by a contingency fee
agreement, Plaintiff now seeks approval under § 406(b) of the Social Security Act to pay his
attorney fees in the amount of $13,513.38, which represents less than 25% of the past-due benefits
he received. (docs. 24-1 at 1; 24-2.)
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
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 in relevant part that “[w]henever 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).4 While § 406(b) “does not displace
contingent-fee agreements as the primary means by which fees are set for successfully representing
Social Security benefits claimants in court,” agreements that provide for fees exceeding 25 percent
of past-due benefits are unenforceable. Gisbrecht, 535 U.S. at 807. Even when contingency fee
agreements are within the statutory ceiling, however, Ҥ 406(b) calls for court review of such
arrangements as an independent check, to assure that they yield reasonable results in particular
4

The Supreme Court recently clarified that this 25 percent cap only applies to fees for court representation and
does not include fees awarded under § 406(a) for agency representation. See Culbertson v. Berryhill, 139 S. Ct. 517, 523
(2019) (holding that “the 25% cap in § 406(b)(1)(A) applies only to fees for court representation, and not to the aggregate
fees awarded under §§ 406(a) and (b)”).

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cases.” Id.5
The reasonableness of attorney’s fees awarded under a fee-shifting statute is generally
determined by using the lodestar method.6 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. “If the benefits 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].” Id. at 808 (citations and quotations omitted). 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 381. It has noted with approval several factors
5

The Commissioner has declined to assert a position on the reasonableness of Plaintiff’s fee request, but does
submit that the requested amount “is not excessive on its face when considered as a lodestar.” (doc. 26 at 4.) As the Fifth
Circuit has noted, the Commissioner has no direct financial stake in the fee determination; rather, his role resembles that
of a “trustee” for the claimant. Jeter v. Astrue, 622 F.3d 371, 374 n.1 (5th Cir. 2010) (citing Gisbrecht, 535 U.S. at 798
n.6). Questioning the reasonableness of the fees sought appears consistent with this role.
6

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).

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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. The award under § 406(b) will be offset by any EAJA fees awarded.7 Id. at 796;
accord Jackson v. Astrue, 705 F.3d 527, 529 (5th Cir. 2013) (“Attorneys who successfully represent
social-security-benefits claimants in court may receive fees under both the EAJA and § 406(b), but
. . . must refun[d] to the claimant the amount of the smaller fee.”) (citations and internal quotation
marks omitted).
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 by 2011
WL 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 by 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. 13.)
Counsel’s resulting hourly rate of $520.008 falls well below amounts that have been

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The EAJA authorizes an award against the Government for reasonable fees in “civil action[s].” See 28 U.S.C.
§§ 2412(d)(1)(A) and (2)(A).
8

Counsel’s hourly rate was determined by first discounting the 35.47 hours of attorney work devoted to this case
by 9.71 hours, and then dividing the amount sought of $13,395.20 by the remaining 25.76 hours. (See doc. 24-1 at 1.)

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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 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”). The resulting hourly rate requested here, therefore,
seems reasonable.
Moreover, counsel provided effective and efficient representation, expending over 25 hours
reviewing the evidence, researching the issues, and drafting a 20-page brief and a 9-page reply brief
that identified and analyzed two legal issues. (See docs. 24-1 at 2; 15; 17.) Given the multiple
denials at the administrative level, the attorney’s success in both the appeal and subsequent
administrative hearing appears to be attributable to his own work. The contingency fee requested
in this case represents less than 25 percent of the past-due benefits awarded to Plaintiff. (See doc.
30 at 2-3.) Finally, while certainly not determinative, the existence of a contingency fee agreement
indicates that Plaintiff consented to the payment of a 25 percent fee. (doc. 24-2); see Jeter, 622 F.3d
at 381-82; see also Brannen, 2004 WL 1737443, at *6 (“When, as here, the agreement calls for a
fee of twenty-five percent of past-due benefits—the same percentage allowed by statute—the fee
contemplated by the agreement, if not presumptively reasonable, is at least a forceful starting point
and solid benchmark.” (emphasis original)).
After weighing the relevant factors, the Court finds that the requested contingency fee award

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in the amount of $13,395.20 is reasonable.9
III. CONCLUSION
Plaintiff’s motion is GRANTED, and his counsel is awarded $13,395.20 in attorney’s fees
out of Plaintiff’s past-due benefits under 42 U.S.C. § 406(b).
SO ORDERED on this 23rd day of March, 2020.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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As noted, Plaintiff’s counsel was previously awarded EAJA fees. (See doc. 23.) In such instances, counsel
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 the $6,227.22 that he received under EAJA. (See doc. 24-1 at 3.)

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