The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TRICHE L. SAUCIER CIVIL ACTION
VERSUS NO. 20-2373
KILOLO KIJAKAZI, ACTING SECTION “R” (4)
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
ORDER AND REASONS
Before the Court is plaintiff’s counsel’s motion for attorney’s fees.1
Defendant Kilolo Kijakazi, Acting Commissioner of the Social Security
Administration (the “Commissioner”), does not oppose the motion.2 For the
following reasons, the Court grants the motion.
I. BACKGROUND
On September 30, 2020, plaintiff brought this action against the
Commissioner of the Social Security Administration, seeking review of the
Commissioner’s denial of plaintiff’s application for disability insurance
benefits.3 On November 3, 2021, the Commissioner filed a motion to reverse
and remand the case to the agency for further administrative proceedings
1 R. Doc. 41.
2 R. Doc. 42.
3 R. Doc. 5.
under 42 U.S.C. § 405(g).4 On November 18, 2021, Magistrate Judge Karen
Wells Roby issued a Report and Recommendation (“R&R”) recommending
that the Court grant the motion to reverse and remand.5 No party objected
to the R&R, and the Court adopted the R&R as its opinion and remanded
plaintiff’s case to the agency for further proceedings.6 The remanded
proceedings resulted in a finding that plaintiff was entitled to social security
benefits, including an award of $181,438.10 to plaintiff in past-due benefits.7
Now, plaintiff’s counsel moves for an award of attorney’s fees pursuant to 42
U.S.C. § 406(b) of the Social Security Act.8 The motion is unopposed.
The Court considers plaintiff’s counsel’s motion below.
II. DISCUSSION
42 U.S.C. § 406(b) allows for the award of attorney’s fees to a disability-
claimant’s counsel who successfully pursues an appeal in court. Murkledove
v. Astrue, 635 F.3d 784, 787 (5th Cir. 2011). The award is to be paid “out of
the past-due benefits recovered by a successful claimant in a Social Security
action.” Id. The Fifth Circuit has explained that the provision exists “to
4 R. Doc. 33.
5 R. Doc. 34.
6 R. Doc. 35.
7 R. Doc. 41-1 (Notice of Award).
8 R. Doc. 41.
encourage effective legal representation of claimants by ensuring lawyers
that they will receive reasonable fees directly through certification by the
Secretary.” Jackson v. Astrue, 705 F.3d 527, 530 (5th Cir. 2013) (quoting
Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970)). But there is a
statutory limit, set at 25% of the claimant’s past-due benefits, which serves
to ensure that a claimant’s benefits not be excessively diluted by contingency-
fee agreements. Id. at 530 n.6.
Section 406(b) applies when, as here, the claimant obtains a favorable
decision on remand before the agency. Id. at 531. And, though the requested
fee may be under the statutory ceiling of 25%, Ҥ 406(b) requires a court to
review the ‘arrangement as an independent check, to assure that it yields
reasonable results’ in the case.” Calaforra v. Berryhill, No. 15-2298, 2017
WL 4551350, at *3 (S.D. Tex. Oct. 12, 2017) (quoting Gisbrecht v. Barnhart,
535 U.S. 789, 807 (2002) (internal quotation marks omitted)). Thus, the
Court’s independent review ensures that the fee is not simply a windfall to
the attorney. Jeter v. Astrue, 622 F.3d 371, 380-82 (5th Cir. 2010). “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 379. The Court is vested with wide discretion in approving or
discounting the amount of attorney’s fees. Id. at 376.
The Court’s task here is to determine if plaintiff’s attorney has shown
that the attorney’s fees sought, which amount to $39,359.53, are reasonable.
Gisbrecht, 535 U.S. at 807 n. 17; Calaforra, 2017 WL 4551350 at *3. In
conducting this inquiry, courts looked to a number of non-exhaustive factors,
including the existence of a contingency fee agreement, the risk of loss that
the attorney assumes, the experience and quality of the attorney, whether the
attorney caused any unnecessary delay, and the effective hourly rate. Jeter,
622 F.3d at 377; Calaforra, 2017 WL 4551350 at *4. Further, “[i]f the court
finds the fee unreasonable, it ‘must discuss the factors that demonstrate that
the success on appeal is not of the attorney’s making, but rather, is
attributable to some other source for which it would be unreasonable to
compensate the attorney.’” Blanks v. Berryhill, No. 14-CV-303, 2017 WL
6389693 at *2 (S.D. Tex. Nov. 21, 2017), adopted, 2017 WL 6398748 (S.D.
Tex. Dec. 13. 2017) (quoting Jeter, 622 F.3d at 381).
In light of the applicable law, the Court finds that the fee requested by
plaintiff’s counsel is reasonable. Before this lawsuit was filed, plaintiff
entered into a contingency fee agreement with the moving attorney and his
law firm, which set the attorneys’ compensation at 25% of any recovery of
past-due benefits.9 That percentage falls within the range set by statute. 42
9 R. Doc. 41-2.
U.S.C. § 406(b)(1)(A). And, plaintiff’s counsel now seeks to receive less than
the agreed-upon amount, asking instead for approximately 21.6% of the past-
due benefits awarded. This is because he discounted the amount of fees
calculated according to the contract ($45,359.53) by the $6,000 awarded to
plaintiff’s representative at the administrative level, resulting in the sought
amount of $39,359.53. Operating under a contingency fee arrangement,
then, counsel assumed the risk that no benefits would be awarded and that
his firm would receive nothing for its efforts. Smith v. Berryhill, No. 15-686,
2017 WL 1501542 at *2 (N.D. Tex. Apr. 6, 2017), adopted, 2017 WL 1494722
(N.D. Tex. Apr. 26, 2017) (substantial risk of loss in Social Security cases).
One court has noted that, on average, as little as 35% of claimants who filed
suit received benefits. Charlton v. Astrue, No. 10-56, 2011 WL 6325905 at *4
(N.D. Tex. Nov. 22, 2011), adopted, 2011 WL 6288029 (N.D. Tex. Dec. 14,
2011).
In terms of the experience and quality of the attorney, plaintiff’s lead
counsel represents that he has litigated numerous disability-benefits cases in
his career spanning more than 25 years, including matters handled as
counsel for the Social Security Administration.10 Further, a review of the
record reveals that plaintiff’s counsel devoted 40.6 hours of work to this
10 R. Doc. 41 at 4.
case,11 which included filing a 15-page brief that identified at least one
meritorious argument. Additionally, there is no evidence that plaintiff’s
counsel was responsible for any unnecessary delay in the proceedings.
Finally, in terms of an hourly rate, an award of the fees requested by
plaintiff’s counsel would compensate them at a rate of $969.45 per hour for
the work that they performed at the judicial level. To be sure, that amount is
significantly more than the hourly rates typically awarded on Equal Access
to Justice Act (“EAJA”) fee applications as well as lead counsel’s ordinary
non-contingent rate of $595.00 per hour. But due to “the difficult nature of
Social Security appeals and their low rates of success,” a seemingly high
hourly rate, by itself, “does not render an otherwise reasonable fee
unreasonable.” Jeter, 622 F.3d at 382. Because plaintiff was awarded past-
due benefits that totaled $181,438.10, the applicable hourly rate is instead a
reflection of counsel’s effective representation and positive results obtained
for plaintiff. Further, as explained previously, plaintiff’s counsel seeks to
recover significantly less than the amount agreed upon. Lastly, an hourly
rate of $969.45 is also less than, or similar to, rates approved in several other
cases. Claypool v. Barnhart, 294 F.Supp.2d 829 (S.D. W. Va. 2003)
($1,433.12 per hour); Sabourin v. Colvin, No. 11-2109, 2014 WL 3949506
11 R. Doc. 41-3 at 2-3.
(N.D. Tex. Aug. 12, 2014) ($1,245.55 per hour); Brown v. Barnhart, 270 F.
Supp. 2d 769 (W.D. Va. 2003) ($977.20 per hour); Wilson v. Berryhill, No.
13-1304, 2017 WL 1968809 (N.D. Tex. Apr. 7, 2017), adopted, 2017 WL
1956242 (N.D. Tex. May 11, 2017) ($937.50 per hour); Prude v. U.S. Comm’r
Soc. Sec. Admin., No. 11-1266, 2014 WL 249033 (W.D. La. Jan. 22, 2014)
(same). The requested hourly rate is similarly within the range of awards for
cases involving comparable work. See, e.g., Smith, 2017 WL 1501542 at *3
(finding $20,898.68 for 27.10 hours reasonable). In light of the applicable
authorities and the Commissioner’s position, the Court finds that the
requested award is reasonable and that it as a direct result of counsel’s
advocacy as opposed to an inappropriate windfall. Calaforra, 2017 WL
4551350 at *4.
The Court also notes that EAJA fees in the amount of $6,790.00 were
awarded in this case previously. Plaintiff’s counsel requests that, pursuant
to the Social Security Act and the EAJA, the Court order them to refund EAJA
fees in the amount of $6,790.00 directly to the plaintiff.12 The Court finds
that such a refund to the plaintiff is required by the applicable law. See
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (explaining that an EAJA award
offsets an award under Section 406(b) such that the amount of the total past-
12 R. Doc. 41 at 2.
due benefits the claimant actually receives will be increased by the EAJA
award up to the point the claimant receives 100 percent of the past-due
benefits).
For the foregoing reasons, plaintiff's counsel’s motion is granted.
III. CONCLUSION
The Court GRANTS plaintiffs counsel’s motion for attorney’s fees. The
Court approves the requested fee of $39.359.53 and ORDERS plaintiff's
counsel to refund the plaintiff in the amount of $6,790.00.
New Orleans, Louisiana, this 26th _ day of May, 2023.
herek Varvee_
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE