United States District Court, D. Nebraska
Mary K. Palmer, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the Court on plaintiff's motion for
attorney fees under 42 U.S.C. § 406(b). Filing No.
25. The government filed no objection to the motion.
This Court previously reversed the Commissioner and ordered
an award of benefits in this case. Filing No. 18 and
Filing No. 19. The Court also awarded plaintiff fees
under the Equal Access to Justice Act, (“EAJA”).
Filing No. 24. Counsel requests additional fees
pursuant to a contingency fee agreement between him and the
plaintiff. Filing No. 25-1, Fee Agreement.
406(b) of the Social Security Act controls fees for
representation of Social Security claimants in court.
Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)
(citing 20 C.F.R. § 404.1728(a)). Under § 406(b),
“a court may allow ‘a reasonable fee . . . not in
excess of 25 percent of the . . . past-due benefits'
awarded to the claimant.” Id. at 795 (quoting
42 U.S.C. § 406(b)(1)(A)). Section 406(b) expressly
requires any attorney fees awarded under that section to be
payable “out of, and not in addition to, the amount of
[the] past due benefits.” 42 U.S.C. §
406(b)(1)(A). In Gisbrecht, the Supreme Court
concluded § 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.” Id. at 807.
Section 406(b), however, requires the court to assess the
reasonableness of attorney fees requested under
contingent-fee agreements. Id. at 809. In
determining whether a requested fee under § 406(b) is
“reasonable, ” a court must consider factors that
include the “character of the representation and the
results the representative achieved.” Id. at
808. The Supreme Court explained:
Congress has provided one boundary line: Agreements are
unenforceable to the extent that 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. Courts that approach fee determinations by
looking first to the contingent-fee agreement, then testing
it for reasonableness, have appropriately reduced the
attorney's recovery based on the character of the
representation and the results the representative achieved.
If the attorney is responsible for delay, for example, a
reduction is in order so that the attorney will not profit
from the accumulation of benefits during the pendency of the
case in court. If the benefits are large in comparison to the
amount of time counsel spent on the case, a downward
adjustment is similarly in order.
Id. at 807-08 (citations and footnote omitted). In
assessing the reasonableness of a 25 percent contingent fee
under § 406(b), it is appropriate to consider the de
facto hourly rate. See Id. at 808 (noting
that “the court may require the claimant's attorney
to submit, . . . as an aid to the court's assessment of
the reasonableness of the fee yielded by the fee agreement, a
record of the hours spent representing the claimant and a
statement of the lawyer's normal hourly billing
requests $15, 508.75 for the 31.4 hours as shown in the
application under 42 USC 406(b), Filing No. 25,
which yields an hourly rate of $ 493.91 per hour. If the
Court considers the $5, 973.85 credit for the EAJA fee,
Filing No. 24, then the only money from past-due
benefits used to pay the requested fee is $9, 534.90. Against
that total, the 31.4 hours of work in this Court comes to an
hourly rate of $303.66: 9, 534.90/ 31.4 = 303.6592. The Court
finds these rates are reasonable, given the risk factors as
well as the experience of counsel in this case. This fee
award is well within the range of cases that are equivalent
to this one. See O'Bryan v. Astrue, 2008 WL
2074006 (D. Neb., May 14, 2008) ($16, 000.00; 22.3 hours for
an equivalent hourly rate of $717.49.)
the factors discussed in Gisbrecht, the court
concludes that $15, 508.75 is a reasonable fee under 42
U.S.C. § 406(b). The amount is not above the statutory
limit of 25 percent of total past-due benefits.
Plaintiff's counsel has shown he has substantial
experience in this field, including a number of years working
almost exclusively on Social Security disability cases, both
at the administrative and federal court level. The Court
finds this favorable result would not have occurred without
counsel's assistance. Further, there are no objections to
the 25 percent contingent fee. Against this amount, plaintiff
is entitled to a credit of $5, 973.85 already paid to Counsel
under the EAJA. Filing No. 23. Counsel is not
permitted to keep both fees. Accordingly, subtracting the sum
already paid equals a remaining amount owing to Counsel of
IT IS ORDERED:
Plaintiff's motion for attorney fees pursuant to 42
U.S.C. § 406(b), Filing No. 25, is granted.
Plaintiff's attorney is entitled to an additional
attorney fee of $9, 534.90.
Judgment for attorney fees in the amount of $9, 534.90 will