contingency agreement regarding attorney’s fees awarded pursuant to 42 U.S.C. § 406(b) cannot exceed 25 percent of claimant’s past due benefits award and must be reasonable for the services rendered
How later courts described this case
- contingency agreement regarding attorney’s fees awarded pursuant to 42 U.S.C. § 406(b) cannot exceed 25 percent of claimant’s past due benefits award and must be reasonable for the services rendered
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
WANONA SNOWDEN, )
)
Plaintiff, )
)
v. ) Case No. 20-03300-CV-SW-JAM-SSA
)
)
MARTIN O’MALLEY, )
Commissioner of Social Security, )
)
Defendant. )
ORDER
On September 5, 2024, Plaintiff Wanona Snowden filed a Motion for An Award of
Attorney Fees Under 42 U.S.C. § 406(b), including numerous attachments. (Doc. 29) This
motion seeks approval of Plaintiff’s counsel’s request for attorney’s fees in the amount of
$19,310.50. The Commissioner filed a response, indicating that attorney’s fees have already been
withheld from the past due benefits awarded to Plaintiff but remain held by the Social Security
Administration pending court approval. (Doc. 30)
As supported by the attachment at Doc. 29-5, the amount of $19,310.50 is in accordance
with the contingency fee contract between Plaintiff and Plaintiff’s counsel, in which Plaintiff
recognized her counsel is entitled to 25 percent of Plaintiff’s past-due benefits. Title II past-due
benefits total $77,242.00 (Doc. 29-8), and 25 percent of this number equals $19,310.50, the amount
Plaintiff’s counsel is requesting. The Court already awarded attorney’s fees under the Equal
Access to Justice Act (“EAJA”) in the amount of $6,434.40 (Doc. 28), which Plaintiff’s counsel
represents will be refunded to Plaintiff if payment under Section 406(b) is approved.
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Defendant does not take a position on the amount requested for payment of attorney’s fees
in this case but requests that Plaintiff’s counsel be ordered to refund to Plaintiff the previously
received attorney’s fees under the EAJA. Pub. L. No. 99-80, § 3, 99 Stat. 186 (August 5, 1985)
(attorney must refund smaller of the § 406(b) or EAJA fee to his client); see also Gisbrecht v.
Barnhart, 535 U.S. 789 (2002) (contingency agreement regarding attorney’s fees awarded
pursuant to 42 U.S.C. § 406(b) cannot exceed 25 percent of claimant’s past due benefits award and
must be reasonable for the services rendered).
The Court in Gisbrecht instructs that attorney’s fees awarded under 42 U.S.C. § 406(b)
must be reasonable as independently determined by the Court, and may not exceed 25 percent of
the claimant’s past-due benefits. 535 U.S. at 807. The following factors are analyzed as part of
the Court’s reasonableness inquiry: “the character of the representation and results achieved,
whether counsel was responsible for delay, and whether the benefits achieved were large in
comparison to the time expended by counsel.” Jones v. Berryhill, 600 F. App'x 587, 588 (8th Cir.
2017) (citing Gisbrecht, 535 U.S. at 807-08). The Court may also consider hourly rate. Id. at
588.
Here, the “character of the representation” was reasonable. Plaintiff retained counsel to
represent her and agreed to the 25 percent contingent-fee payment arrangement. (Doc. 29-5)
The Supreme Court has noted that contingency agreements for the statutory maximum of 25
percent “are the most common fee arrangement between attorneys and Social Security claimants.”
Gisbrecht, 535 U.S. at 800. Nothing suggests the agreement in this case is unreasonable.
Moreover, there is no indication in the record or allegation from the Commissioner that Plaintiff’s
counsel was responsible for any significant or undue delays. See Lammers v. Saul, No. 17-00288-
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CV-W-SWH, 2020 WL 3452611, at *2 (W.D. Mo. June 24, 2020) (if the attorney is responsible
for causing delay, a reduction in fees is warranted to prevent the attorney from benefiting
financially from the accumulation of benefits while the case is pending in court); see also
Rodriguez v. Bowen, 865 F.2d 739, 746-47 (6th Cir. 1989) (unnecessary delays caused by an
attorney can reflect poorly on the character of their representation and lead to a reduction in the
fee award).
In evaluating the “result the representative achieved,” Plaintiff’s counsel secured
$77,242.00 in past-due benefits for Plaintiff. (Doc. 29-8) This favorable outcome was a direct
result of counsel’s thorough review of the extensive case record and the drafting of key briefs.
(Docs. 10-2, 12, 20, 29-6) These efforts were essential in building a compelling case and
achieving a successful result for Plaintiff.
The Court must also consider whether the “benefits are large in comparison to the amount
of time counsel spent on the case” in order to avoid a windfall. Gisbrecht, 535 U.S. at 808. The
record contained over 2,400 pages and Plaintiff’s counsel spent a total of 29.90 hours on the civil
litigation, which included preparing substantive memoranda. (Docs. 10-2, 12, 20, 29-6)
Plaintiff’s counsel thoroughly reviewed the record in order to draft a 19-page brief in support of
the Complaint, in addition to a 6-page reply brief, requiring 22.8 hours. (Docs. 12, 20, 29-6) The
total Section 406(b) fee of $19,310.50 would result in an hourly rate of $645.84. This fee amount
is not unreasonable for this Section 406(b) Social Security case. Other courts have awarded fees
that translate into hourly rates equal to or in excess of those sought by counsel in this case. See,
e.g., Brown v. Kijakazi, 2023 WL 4947824, at *3 (E.D. Mo. Aug. 3, 2023) (approving § 406(b)
attorney’s fees in the amount of $1,385.16 per hour); Porterfield v. Kijakazi, 4:20-cv-01443 SRW,
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2023 WL 5722612, at *5 (E.D. Mo. Sept. 5, 2023) (approving a fee equivalent to an hourly rate of
$2,016.27); Williams v. Kijakazi, 4:22-cv-00358 SPM, 2023 WL 7214047, at *2 (E.D. Mo. Nov.
2, 2023) (approving Section 406(b) attorney’s fees with an effective rate of $805.08 per hour);
Long v. Saul, 2021 WL 2588110 (N.D. Ind. June 24, 2021) (approving a total fee of $21,742 and
noting that an hourly rate of $1,711.96 is within the range of § 406(b) rates approved by courts).
Plaintiff’s counsel asserts that the effective hourly rate of $645.84 is not excessive when
considering the contingent nature of the case. When adjusted by a factor of 2.8, based on the
statistical likelihood of prevailing, the equivalent non-contingent hourly rate is reduced to $230.66.
This adjusted rate is comparable to the non-contingent rates of $206.00 and $216.00 per hour for
work done in 2020 and 2021/2022, which was previously approved for the EAJA fees awarded
herein. (Doc. 28) The EAJA fee awards are not contingent on the amount recovered; by contrast,
attorney’s fees awarded under 42 U.S.C. § 406(b) are contingent on the amount recovered and
reflect the risk of non-payment if past-due benefits are not awarded. Gisbrecht, 535 U.S. at 807-
08. Given the contingent nature of the representation, the work performed, and the results
achieved, the requested fee is reasonable and does not result in an unearned windfall to counsel.
Upon review, and in accordance with the Gisbrecht standard, the Court finds that the
contingent fee agreement between Plaintiff and Plaintiff’s counsel is reasonable, and payment in
the amount of $19,310.50 to Plaintiff’s counsel under section 42 U.S.C. § 406(b) is reasonable and
should be approved. It is therefore
ORDERED that Plaintiff’s Motion for An Award of Attorney Fees Under 42 U.S.C. §
406(b) (Doc. 29) is granted. It is further
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ORDERED that the Commissioner make payment to Plaintiff’s counsel, the Parmele Law
Firm, P.C, in the amount of $19,310.50. It is further
ORDERED that Plaintiff’s counsel, upon receipt of payment in the amount of $19,310.50
under Section 406(b), refund to Plaintiff Wanona Snowden the EAJA attorney’s fees previously
received by Plaintiff’s counsel in the amount of $6,434.40.
/s/ Jill A. Morris
JILL A. MORRIS
UNITED STATES MAGISTRATE JUDGE
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