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Richards v. Astrue

May 8, 2009

JAN RICHARDS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Frederick F. Mumm United States Magistrate Judge

ORDER AWARDING ATTORNEY FEES PURSUANT TO 42 U.S.C. §406(b)

I. INTRODUCTION

After remand, the Social Security Administration awarded plaintiff Jan Richards ("Plaintiff") $108,866.40 in gross retroactive benefits. Now pending before the Court is the petition of Plaintiff's counsel, Bill LaTour, for attorney fees in the amount of $27,216.60 for his representation of Plaintiff in this matter.*fn1

Defendant filed a response which neither opposes nor supports the petition. Rather, Defendant's position is only that the requested fee must be "reasonable" under the guidelines enunciated in Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 152 L.Ed. 2d 996 (2002). After careful consideration, the Court finds in this case that $27,216.60 for 10.25 hours of work by Plaintiff's counsel and 16.40 hours of paralegal work is unreasonably excessive.

II. DISCUSSION AND ANALYSIS

Plaintiff's counsel brings this petition pursuant to 42 U.S.C. §406(b), which provides in relevant part:

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 . . . .

In Gisbrecht, the Supreme Court resolved a division among the federal circuits on the appropriate method of calculating attorney fees under §406(b). Rejecting the "lodestar method" which several of the circuits (including the Ninth Circuit) had been applying, the Supreme Court held:

[Section] 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. 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 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. 535 U.S. at 807 (footnotes omitted).

In determining whether the $27,216.60 award sought by Plaintiff's counsel is "reasonable for the services rendered" here, the Court has considered a number of factors. A number of these militate in favor of a substantial award. First, under the terms of the contingent fee agreement between Plaintiff and Plaintiff's counsel, Plaintiff's counsel would be entitled to fees corresponding to 25% of the past-due benefits awarded. Plaintiff agreed to the 25% contingency and the $27,216.60 award would be exactly the agreed upon amount.*fn2 The Court has no basis for finding that there was any fraud or overreaching by counsel in the making of the contingent fee agreement with Plaintiff.

Second, the $27,216.60 award sought by Plaintiff's counsel is not in excess of the 25% statutory limit.

Third, there is no excessive delay attributable to counsel which would unduly increase the past-due benefits accumulated during the pendency of the case in court.

Fourth, Plaintiff's counsel's services were not substandard. He urged three grounds for reversing the adverse decision and, although the Court did not make an award of benefits, it did find it appropriate to remand for further proceedings on all three grounds.

Nonetheless, the Court is required to consider the overall reasonableness of the amount requested based on the character of the representation and the results achieved. In this regard, Plaintiff's counsel has the burden of demonstrating reasonableness. Gisbrecht, 535 U.S. at 807 ("the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered"). Yet, Plaintiff's counsel has not provided this Court with any information other than the contract to carry this burden. Plaintiff's counsel merely states that he never charges an hourly rate and cites cases demonstrating that courts have awarded fees for as much as 117 hours of work. Presumably, the citations are intended to demonstrate that the time incurred herein was not excessive. However, the ten and a quarter hours expended by Plaintiff's counsel is clearly not excessive. The question here is what is an appropriate compensation for 10.25 hours of lawyer work and 16.40 hours of ...


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