Summary
approving effective hourly rate of $312.26 as less than twice the EAJA rate of $165.00
Summary of this case from Banks v. Comm'r of Soc. Sec.Opinion
Case Number: 1:08-cv-815.
March 16, 2011
MEMORANDUM ORDER
Pending is Plaintiff's motion for an award of attorney fees under 42 U.S.C. § 406(b). Doc. 19. For the following reasons, the motion will be granted.
I. Background
In January 2010, this Court entered judgment in this Social Security appeal reversing the decision of the Commissioner and remanding under sentence four of 42 U.S.C. § 405(g). In April 2010, plaintiff filed a motion for fees pursuant to the Equal Access to Justice Act (EAJA). Doc. 14. Over the Commissioner's objection, in October 2010 this Court awarded fees and costs in the amount of $5,465. Doc. 18. In February 2011, plaintiff filed this second motion for fees, citing as grounds the contingency fee agreement signed by the claimant in October 2009 and the notice of award issued by the Social Security Administration. Doc. 19. Pursuant to the Court's order [Doc. 20], plaintiff's attorney supplemented the motion by submitting the notice of award from the Social Security Administration. Doc. 21. The Commissioner did not respond to the pending motion for attorney fees.
II. Analysis
I conclude that the requested fee is reasonable. In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court held that § 406(b) does not displace contingent fee agreements that fall within the statutory maximum fee award of 25% of past-due benefits, but instead requires courts to review the fee agreements for reasonableness. In Hayes v. Sec'y of Health Human Servs., 923 F.2d 418, 422 (6th Cir. 1991), the court held that "a hypothetical hourly rate that is less than twice the standard rate is per se reasonable. . . ."Edwards' total award was $39,656.87. Doc. 21, p. 7. Twenty-five percent of that award, the statutory maximum and the percentage agreed to in the contingent fee agreement, is $9,914.22.
The current motion for attorney fees represents that counsel has performed 31.25 hours of work (excluding the time spent to prepare the EAJA petition). At the time of her last fee petition, counsel claimed an award based upon prevailing market rates of $165.00 per hour for 31 hours of work (including time spent preparing the EAJA petition). Counsel has spent the additional 1.25 hours since the motion for EAJA fees speaking to or updating Edwards, her client. Accordingly, I conclude that the time expenditure claimed by counsel is reasonable.
The hourly rate is also reasonable. Dividing $9,914.22 (the maximum possible award) by 31.25 hours of work results in an hourly rate of $312.26, a rate less than twice the $165 hourly rate approved by this Court in the award of fees under the EAJA. The rate is, thus, per se reasonable.
The motion incorrectly states that "[a] rate of $318 per hour times the 31.25 hours of work would equal a fee of $9914.21." Doc. 19, p. 3. Mathematically, however, 318 × 31.25= 9937.50, an amount above the statutory cap of twenty-five percent of Edwards' award. This error is insignificant, however, since counsel can only receive $9,914.22, the statutory maximum, and the hourly rate necessary to be awarded that maximum amount for 31.25 hours of work is per se reasonable.
In order to avoid double-recovery of fees, if an award for the same work is made under § 406(b) that was previously made under the EAJA, the attorney must refund to his or her client the amount of the smaller fee. See Gisbrecht, 535 U.S. 789. To effectuate the refund, a court may award the difference between the award made under § 406(b) and the earlier EAJA award, see Jackson v. Comm'r of Social Security, 601 F.3d 1268, 1272 (11th Cir. 2010). Subtraction of the previous EAJA award of $5465 from the current award of $9914.22 results in an award of $4449.22.
The court assumes that counsel actually received the fee award under the EAJA. In Astrue v. Ratliff, 130 S. Ct. 2521 (2010) the Supreme Court recently held that the EAJA requires that awards be made to the plaintiff, not to the attorney directly. Fee awards under the EAJA may be subject to offset to satisfy a claimant's pre-existing debt to the Government.
For the reasons stated herein, IT IS ORDERED:
1. Plaintiff's motion for attorney's fees under § 406(b) [Doc. 19] is GRANTED; and
2. Plaintiff's counsel shall be awarded the additional sum of $4449.22 in attorney's fees under § 406(b), which sum reflects a total award of $9914.22 less the sum previously awarded under the EAJA.