The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CHARMAINE MCCLINE,
Plaintiff,
vs. Case No. 18-CV-252-FHM
ANDREW M. SAUL,
Commissioner of Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff’s Attorney’s Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b)
[Dkt. 22] is before the Court. Counsel seeks approval of an attorney fee award of $21,800
pursuant to the terms of 42 U.S.C. § 406(b) and the contingency fee contract between
Plaintiff and counsel. Counsel has certified that Plaintiff has been advised of the fee
request, and Plaintiff has expressed no objection to the requested fee award. [Dkt.22-3]
Section 406(b)(1) allows an award of attorney fees, payable from the past due benefits
withheld by the Social Security Administration, when the district court has remanded a
Social Security disability case for further proceedings and benefits are awarded on remand.
McGraw v. Barnhart, 450 F.3d 493 (10th Cir. 2006). 42 U.S.C. ' 406(b)(1)(A) provides that
a court may award Aa reasonable fee . . . not in excess of 25 percent of the . . . past due
benefits awarded to the claimant. The fee is payable out of, and not in addition to, the
amount of [the] past-due benefits. Section 406(b)(1)(A) does not replace contingency fee
agreements between Social Security claimants and their counsel. Instead, that section
requires the district court to review contingency fee agreements as an independent check
to assure that the agreement yields a reasonable result. Gisbrecht v. Barnhart, 535 U.S.
789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). Section 406(b) provides a
boundary that agreements are unenforceable to the extent that they provide for fees
exceeding 25 percent of the past-due benefits. Id.
In determining whether a fee resulting from a contingency fee contract is reasonable,
it is appropriate to adjust the attorney’s recovery based on the character of the
representation and the results the representation achieved. A reduction is in order if the
attorney is responsible for delay, so the attorney will not profit from the accumulation of
past-due benefits while the case is pending in court. In addition, if the benefits are large
in comparison to the amount of time counsel spent on the case, the fee award may be
adjusted. Id. 535 U.S. at 808, 122 S.Ct. at 1828. Further, the burden to prove the fee is
reasonable is placed upon the attorney seeking the fee. Id. at n.17.
Plaintiff and counsel entered into a contingency fee arrangement that provides if the
attorney prevails before the federal court on Plaintiff’s behalf, and Plaintiff is awarded
benefits by the Social Security Administration, Plaintiff agrees to pay counsel a fee for
federal court work equal to 25% of the past due benefits.
The undersigned concludes that the requested fee award of $21,800 which is 19%
of Plaintiff’s past due benefit award as reflected in the record submitted is reasonable. That
award comports with the contract between counsel and Plaintiff and is within the statutory
limits of § 406(b). The fee yields an hourly rate of approximately $778 per hour for 28
hours of work performed before the district court, which does not amount to a windfall.
Often a fee recovery in a percentage-based contingency fee contract will be higher than
the fee produced by a straight hourly rate agreement. That circumstance serves to induce
attorneys to risk providing legal services in cases where they may not be paid. And finally,
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when the amount of the EAJA fee award, $ 5,450, is returned to Plaintiff in accordance with
Weakley v. Brown, 803 F.2d 575, 580 (10th Cir. 1986), the net result is an out-of-pocket
payment from Plaintiff of $16,370 which is 14.5% of her past due benefits.
Plaintiff’s Attorney’s Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b),
[Dkt. 22], is GRANTED as follows:
Counsel is awarded $21,800 to be paid from Plaintiff’s past due benefits being
withheld by the Commissioner for attorney fees. In accordance with Weakley v. Brown,
803 F.2d 575, 580 (10th Cir. 1986), upon receipt of payment, counsel is required to refund
$5,450 to Plaintiff, which is the amount of the EAJA award .
SO ORDERED June 23, 2020.
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