United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Janet Kelley's Motion for
Attorney Fees Under 42 U.S.C. § 406(b) (Doc. No. 19),
filed through Plaintiff's counsel Miles Mitzner.
February 1, 2019, the Court entered a Judgment reversing the
Commissioner's decision denying Plaintiff's
applications for disability insurance benefits
(“DIB”) and remanding the case for further
administrative proceedings under the fourth sentence of 42
U.S.C. § 405(g). See J. (Doc. No. 14) at 1. On
September 24, 2019, the Social Security Administration issued
a favorable decision on Plaintiff's DIB application and
found that Plaintiff was entitled to benefits beginning in
August 2014. See Pl.'s Mot. Att'y Fees Ex. 2
(Doc. No. 19-2) at 1. The Commissioner's notice shows
that Plaintiff is entitled to past-due benefits in the amount
of $112, 249.00 and that 25 percent, or $28, 062.25, of those
past-due benefits has been withheld to be applied toward her
attorney's fees for work done in this action. See
Id. at 2; Def.'s Resp. (Doc. No. 20) at 2.
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 by reason of such judgment . .
42 U.S.C. § 406(b)(1)(A). Any such payment must be made
“out of, and not in addition to, ” the past-due
benefits owed to the claimant. Id. This subsection
“does not displace contingent-fee agreements as the
primary means by which fees are set for successfully
representing Social Security benefits claimants in
court” so long as the agreed-upon amount stays within
the statute's “25 percent boundary.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For
a fee request that lies within this boundary, “the
attorney for the successful claimant” still “must
show that the fee sought is reasonable for the services
Motion, Plaintiff's counsel requests a fee award of 25
percent of Plaintiff's total past-due benefits, which is
the percentage stipulated in the fee agreement between
Plaintiff and Plaintiff's counsel. See Pl.'s
Mot. Att'y Fees at 2; id. Ex. 1 (Doc. No. 19-1)
at 1. The Commissioner has responded that he takes no
position on Plaintiff's counsel's fee request for
$28, 062.25 in fees. See Def.'s Resp. at 1-2.
The Commissioner correctly notes, however, that the Court
previously awarded $4818.00 in attorney's fees pursuant
to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, and that if fees are now awarded pursuant
to § 406(b) Plaintiff's counsel must refund the
lesser EAJA award to Plaintiff. See Id. at 2; Order
of Mar. 6, 2019 (Doc. No. 16) at 1-2; McGraw v.
Barnhart, 450 F.3d 493, 497 & n.2 (10th Cir. 2006).
accordance with Gisbrecht, the Court begins with the
amount stipulated in the contingency fee agreement as its
baseline-i.e., 25 percent of $112, 249.00, or $28, 062.25.
See Russell v. Astrue, 509 Fed.Appx. 695, 697
(2013). Having carefully reviewed the parties'
submissions, however, the Court finds that an award of $28,
062.25, though within the 25-percent boundary, would not be a
“reasonable result” in this “particular
case, ” Gisbrecht, 535 U.S. at 807, and that
“a downward adjustment is . . . in order” because
“the recovery of past-due benefits for the claimant is
‘large in comparison to the amount of time counsel
spent on the case.'” Russell, 509
Fed.Appx. at 696 (emphasis omitted) (quoting
Gisbrecht, 535 U.S. at 808).
counsel expended 22.1 hours working on this case, with
additional paralegal assistance of 4.05 hours. See
Pl.'s Mot. Ex. 3 (Doc. No. 19-3) at 3. Plaintiff's
request for $28, 062.25 would result in an attorney-fee award
in excess of $1073.13 per hour for the attorney time
expended. See id.; see also Gisbrecht, 535
U.S. at 793, 808 (rejecting the “lodestar” method
of calculating fee awards under § 406(b) but noting that
the district court may consider the hours spent and other
factors in contingency-fee cases to help assess “the
reasonableness of the fee yielded by the fee
agreement”). While some courts have assessed the
reasonableness of fee amounts under § 406(b) by
considering the attorney's normal hourly rates multiplied
by 2.5, Plaintiff's counsel's request is more than
five times the $201.00 hourly rate referenced in his
Motion. See Pl.'s Mot. Ex. 3, at 3; see,
e.g., Walker v. Berryhill, No. CIV-15-1353-R,
2018 WL 6438545, at *2-3 (W.D. Okla. Dec. 7, 2018)
(multiplying counsel's typical hourly rate by 2.5 to
arrive at reasonable § 406(b) fee award); Walker v.
Saul, No. CIV-16-703-D, 2019 WL 3323512, at *1 & n.2
(W.D. Okla. July 24, 2019) (same).
fully recognizing and adhering to Gisbrecht's
rejection of sole reliance on lodestar calculations, and
further recognizing the increased risk associated with
contingency fee cases, the Court finds that an award of $28,
062.25-with an effective attorney rate of more than $1073.13
per hour-is excessive and unreasonable. Though within the 25
percent boundary prescribed in § 406(b)(1)(A), an award
of $28, 062.25 for only 22.1 hours of attorney work and 4.05
hours of paralegal work would constitute the type of windfall
disallowed by Gisbrecht. See Stokes v.
Saul, No. CIV-17-234-CG, 2019 WL 5653211, at *2 (W.D.
Okla. Oct. 30, 2019) (rejecting a fee request of $28, 454.88
for 35.95 hours of legal work); Walker, 2018 WL
6438545, at *2-3 (rejecting a fee request of $32, 826.00 for
31.45 hours of legal work); Gisbrecht, 535 U.S. at
808 (noting that “a record of the hours spent
representing the claimant and a statement of the lawyer's
normal hourly billing charge for noncontingent-fee
cases” may serve to “aid . . . the court's
assessment of the reasonableness of the fee yielded by the
fee agreement”); see also Scherffius v.
Astrue, 296 Fed.Appx. 616, 620 (10th Cir. 2008) (finding
no abuse of discretion where district court determined
“the effective $442 hourly rate would be a windfall for
obtaining a voluntary remand in a substantively easy and
routine case”); Russell, 509 Fed.Appx. at
696-98 (affirming district court's reduction of
counsel's request of $17, 184.10 to $11, 884.10 for 28.1
hours of work and noting that “[t]he fee award . . .,
which falls in a middle ground between the request of $611
per hour and counsel's normal rate of $275 per hour, is
not beyond the bounds of reasonable judgment or permissible
carefully reviewed the parties' submissions, the Court
finds that an award of $28, 062.25 is not a reasonable fee
award for the work performed in this case, even considering
the contingent nature of the representation and the
applicable attorney-fee agreement, given the abbreviated
course this case followed. While before the Court, Mr.
Mitzner filed a ten-page opening brief, presenting a
well-supported argument that the administrative law judge
erred in denying Plaintiff's DIB claim. See Doc.
No. 14. Defendant responded by seeking remand of this matter,
however, and the Court granted that request by remanding the
case pursuant to 42 U.S.C. § 405(g). Mr. Mitzner was not
required to review a response brief, draft a reply, or
otherwise litigate the case in this Court. The Court does not
find such a substantial award reasonable under the
circumstances of this case. See Stokes, 2019 WL
5653211, at *2-3; Walker, 2018 WL 6438545, at *3;
cf. Harlan v. Colvin, No. CIV-13-477-D, 2015 WL
9295809, at *1 (W.D. Okla. Dec. 18, 2015) (awarding $17,
429.22 where the putative rate was between $517.95 and
$632.64 per hour).
Plaintiff's Motion for Attorney Fees (Doc. No. 19) is
GRANTED IN PART and DENIED IN PART. Plaintiff's attorney
Mr. Miles Mitzner is awarded attorney's fees in the
amount of $9, 775.20, which is twice counsel's and his
paralegal's normal hourly rates, applied to the total
hours requested (($201.00/hour x 2.0 x 22.1=$8, 884.20)
($110.00/hour x 2.0 x 4.05=$891)). The Social Security
Administration shall pay this fee out of the past-due
benefits Plaintiff received by reason of the remand and
favorable decision in this case, see 42 U.S.C.
406(b)(1)(A), and shall pay this amount directly to: Miles
Mitzner, P.O. Box 5700, Edmond, Oklahoma 73083. Upon ...