United States District Court, W.D. Louisiana, Lafayette Division
Rebecca F. Doherty Judge.
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
before the undersigned is the “Motion for Authorization
of Attorneys' Fees Pursuant to 42 U.S.C.
§406(b)” filed by attorney Matthew David Lane, Jr.
(“Lane”), representing Social Security claimant
Don Anthony Romero (“Romero”), on November 22,
2017 [Rec. Doc. 39]. Defendant, the Commissioner of the
Social Security Administration (“Commissioner”)
filed a Response on December 13, 2017 [Doc. 41]. For the
following reasons, the motion is GRANTED.
seeks an award of attorneys' fees in the amount of $40,
953.00, representing less than 25% of Romero's total
past-due benefits, based on Lane's contingency fee
contract with Romero. For the following reasons, the Motion
for Authorization of Attorneys' Fees Pursuant to 42
U.S.C. § 406(b) [Rec. Doc. 39] is GRANTED.
entitled to apply to the Court, under 42 U.S.C. §
406(b), for an award for his work before the court. Section
406(b) provides, in pertinent part, as follows: 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 . .” 42 U.S.C. §
motion, Lane requests an award of $40, 953.00 which
represents less than twenty-five percent of past-due benefits
that were awarded to Romero. Specifically, Lane contends that
he was awarded a fee of $5, 535.00 under the EAJA, and that
if he is awarded and receives the fees requested under
Sections 406(a) and 406(b) and refunds to the claimant the
fee previously received under EAJA, the total fee received
($46, 240.50) will constitute 22.33% of Mr. Romero's
total past due benefits.
uncontested that there exists a contingency fee agreement
between Lane and Romero, which provides for attorney's
fees of “twenty-five percent (25% percent) of any and
all past-due benefits awarded to my family and
me.” Lane has submitted a time sheet detailing
the professional services he rendered from October 2, 2014 to
December 12, 2016 for representing Romero, with 36.9 hours of
time representing Romero in the federal-court proceeding and
2.3 hours preparing the instant motion and associated
filings, resulting in a total of 39.2 hours representing Mr.
Romero. The time sheet shows a total of 36.90
hours. Lane argues that 25% of Mr. Romero's past due
benefits equals $51, 774.50. After subtracting the fee
requested under Section 406(a) - $10, 822.50 - the sum of
$40, 953.00 remains, which is the amount of counsel's
requested fee under Section 406(b). This Court's
calculation actually shows the correct amount after
subtracting the §406(b) award is $40, 952.00. Lane
acknowledges that if he is awarded the $40, 952.00 requested
in this motion, he will be required to refund the EAJA award
of $5, 535.50 to Romero. The Commissioner agrees that Lane is
entitled to a reasonable fee for court-related
representation, but defers to the Court's determination
of reasonableness. R. 32.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002), the
United States Supreme Court held that section 406 does not
displace contingent-fee agreements within the statutory
ceiling; instead, it instructs courts to review for
reasonableness the fees calculated based on such agreements.
The Court rejected the “lodestar” method (hours
reasonably spent on the case times reasonable hourly rate) of
evaluating attorney fee petitions under 42 U.S.C.
§406(b) and held that section 406(b) “calls for
court review of such arrangements as an independent check, to
assure that they yield reasonable results in particular
cases.” Id. at 807. The Court referenced the
following factors as bearing on the reasonableness of the
requested fee: the character of the representation, the
results the representative achieved, whether the attorney was
responsible for delay, whether the representation was
substandard, whether benefits are large in comparison to the
time spent on the case, and whether the attorney is receiving
a windfall. Id.
Fifth Circuit has held that “courts may consider the
lodestar in their analysis so long as the court can
articulate additional factors demonstrating that the
excessively high fee would result in an unearned advantage.
Jeter v. Astrue, 622 F.3d 371 (5th Cir. 2010). The
court explained that the “windfall” does not
preclude attorneys from recovering what may seem like a high
award if the attorney's success on appeal is of his own
making. If “success on appeal can be attributed to his
attorney's endeavors before the district court, then that
attorney should reap the benefit of his work - even if he
managed to accomplish a great deal in a small window of
time.” Id. at 381. The court noted that
“[a]lthough in some instances a twenty-five percent
contingency fee may result in a seemingly large fee, a
particular claimant's attorney often is not compensated
at all for Social Security work in federal court.”
Id. at 379. Congress wrote § 406(b) to
“ensure that attorneys representing successful
claimants would not risk ‘nonpayment of [appropriate]
fees.” Gisbrecht, 535 U.S. at 805 (quoting SSA
argues that the contingency fee agreement complies with the
provisions of section 406(b) and is reasonable in light of
the results achieved and the factors set forth by the Supreme
Court in Gisbrecht. The undersigned agrees.
provided professional and competent representation to Romero.
Lane's efforts resulted in a reversal of an adverse
ruling and an award of a substantial amount of past-due
benefits in this case. Lane did not cause delay in the
resolution of the matter and did not provide substandard
representation. Also, the benefits to Romero were large in
comparison to the time spent on the case.
Lane's experience before this Court supports the amount
claimed. Lane's practice is focused on the area of Social
Security disability law and he is one of only a few attorneys
in the area who represents Social Security claimants in
federal court. His zealous advocacy led to Romero receiving a
significant amount of past due benefits, as well as
continuing benefits and medicare coverage. Although the
twenty-five percent contingency fee may result in a somewhat
higher fee in this case, this must ...