United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING MOTION FOR ATTORNEY FEES UNDER 42
U.S.C. § 406(B)
D. TODD, UNITED STATES DISTRICT JUDGE
April 16, 2013, pursuant to sentence four of 42 U.S.C. §
405(g), the Court reversed the Commissioner's decision
that Plaintiff Wayne Crawford was not disabled and remanded
the case for additional administrative proceedings. (ECF No.
14.) The Court subsequently granted Plaintiff an attorney fee
in the amount of $4, 195.64 under the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). (ECF No. 20.)
Following an award of benefits from the Social Security
Administration (SSA), Plaintiff filed a motion for attorney
fees pursuant to the Social Security Act, 42 U.S.C. §
406(b). (ECF No. 21.) The Commissioner has filed a response
asserting that the requested fee is unreasonable (ECF No.
22), and Plaintiff subsequently filed a reply in support of
the fee petition (ECF No. 25).
§ 406(b), in social security disability cases attorney
fees may not exceed 25% of the past-due benefits to which a
claimant is entitled. The SSA generally withholds 25% of
past-due benefits for the potential payment of those fees. In
this case, Plaintiff and his attorney, John D. Hamilton,
entered into a contingent-fee agreement at the beginning of
the representation in which it was specifically agreed that
counsel would receive the 25% fee. (ECF No. 21-2.)
Plaintiff's award letter indicates that the SSA has
withheld the sum of $26, 713.75 from the past-due benefits
for the payment of fees. (ECF No. 21-1.) Plaintiff asks the
Court to award $24, 546.11 of that amount to counsel for 22.7
hours of work before the Court ($26, 713.75 less $2, 149.64,
the portion of the EAJA fee already paid to
Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the
Supreme Court rejected the use of the “lodestar”
method of awarding attorney fees under the Social Security
Act, holding that contingent-fee agreements should be honored
by the courts as long as the resulting fee is reasonable and
there are no other factors warranting a reduction.
Id. at 808. There is a rebuttable presumption that
the agreement is reasonable. Rodriquez v. Bowen, 865
F.2d 739, 746 (6th Cir. 1989) (en banc). Courts should
consider “‘the character of the representation
and the results of the representation achieved, ”
whether “the attorney is responsible for delay, ”
the amount of time expended on the case, and whether
approving the fee would result in a windfall to the attorney.
Gisbrecht, 535 U.S. at 808.
v. Barnhart, No. 1:04-1236-T, 2006 WL 681168, at *3
(W.D. Tenn. Mar. 14, 2006).
award is not unreasonable simply because it yields an
above-average hourly rate.
Royzer v. Sec'y of Health and Human Servs., 900
F.2d 981 (6th Cir. 1990), the Court stated:
It is not at all unusual for contingent fees to translate
into large hourly rates . . . . In assessing the
reasonableness of a contingent fee award, we cannot ignore
the fact that the attorney will not prevail every time. The
hourly rate in the next contingent fee case will be zero,
unless benefits are awarded. Contingent fees generally
overcompensate in some cases and undercompensate in others.
It is the nature of the beast.
Id. at 982. In Hayes v. Sec'y of Health and
Human Servs., 923 F.2d 418, 422 (6th Cir. 1990), the
Sixth Circuit explained that “a windfall can never
occur when, in a case where a contingent fee contract exists,
the hypothetical hourly rate . . . is less than twice the
standard rate for such work in the relevant market.”
See also Lasley v. Comm'r of Soc. Sec., 771 F.3d
308 (6th Cir. 2014). Furthermore, “[a] true
‘windfall' in this context . . . must mean more
than that the attorney happened to end up working
substantially fewer hours to obtain the contingent-fee than
he would have been required to expend to earn the same fee
based on an hourly rate.” Whitehead, 2006 WL
681168, at *4.
case, the hypothetical hourly rate of $1, 176.82 is very
large, more than four times the rate on which the EAJA fee
was based. The Commissioner asserts, based solely on the size
of that hypothetical rate, that the requested award is
unreasonable. However, the Hayes formula of
“twice the standard rate” is a floor rather than
a ceiling, and the Court finds that the requested fee would
not result in a windfall in this case. Plaintiff's
attorney is an experienced social security practitioner who
has achieved excellent results for his client which included
over $100, 000.00 in past-due benefits. It does not appear
that those benefits accumulated due to any delay on the part
of counsel or that the representation was in any way
Court concludes that the fee requested in this case is
reasonable. Therefore, pursuant to 42 U.S.C. § 406(b),
the motion for attorney fees is GRANTED in the amount of $24,
564.11, to be paid to Plaintiff's counsel.