United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PETITIONER CHARLES D. HANKEY MOTION FOR ATTORNEY'S FEES
TANYA WALTON PRATT, District Judge.
This matter is before the Court on a Petition for Attorney Fee (Filing No. 18) filed by Charles D. Hankey ("Mr. Hankey"), attorney for Plaintiff Connie Jean Stillwell ("Ms. Stillwell"). Following a favorable decision on remand, the Administrative Law Judge ("ALJ") awarded disability benefits to Ms. Stillwell. Mr. Hankey seeks an award of $9, 773.75, of which $6, 000.00 was already paid, for a remainder of $3, 773.75 in attorney's fees pursuant to § 206(b)(1) of the Social Security Act, 42 U.S.C. § 406(b)(1). For the following reasons, the Court DENIES Mr. Hankey's Motion.
Mr. Hankey represented Ms. Stillwell on contingency in an action before this Court for judicial review of the Commissioner of the Social Security Administration's (the "Commissioner") unfavorable decision. Before he filed an Answer to the Complaint, the Commissioner filed a Motion for Remand to the Commissioner under § 205(g) of the Social Security Act, 42 U.S.C. 405(g). (Filing No. 16.) In attempting to prepare the record in this case, the Social Security Administration's Office of Disability Adjudication and Review discovered that significant portions of the recording of Ms. Stillwell's administrative hearing before the ALJ were inaudible. Because the record could not be completed, the Commissioner requested a remand. On December 16, 2011, the Court granted the Motion and the case was remanded for further administrative proceedings and de novo hearing, without the need for any briefing in the district court. (Filing No. 17.) On December 21, 2012, the ALJ issued a favorable decision for Ms. Stillwell, thereby awarding benefits.
Mr. Hankey seeks attorney's fees pursuant to 42 U.S.C. § 406(b)(1), which permits an award of a reasonable fee for work before the court that does not exceed 25% of past due benefits to which the claimant is entitled by reason of a judgment rendered in favor of the claimant. The total requested fee of $9, 773.75 represents 25% of the past due benefits, which was withheld for the direct payment of an attorney fee by the Social Security Administration. Mr. Hankey does not seek an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), for the time that he expended on this matter. Within Mr. Hankey's fee agreement with Ms. Stillwell, it states in relevant part:
We agree that if my claim(s) is/are not approved at any stage through the first hearing level, and further work is undertaken such as an appeal to the Appeals Council or an appeal to federal court, my representative has the right and option to file a fee petition seeking a fee greater than $6, 000, which is the current amount but may be increased by the Commissioner of Social Security, but not more than 25% of the past due benefits.
(Filing No. 18-3). Mr. Hankey has already received payment in the amount of $6, 000.00 pursuant to a contingent fee agreement with Ms. Stillwell. Mr. Hankey's Petition requests payment for the remainder of $3, 773.75 in attorney's fees. Mr. Hankey rendered a total of 5.6 hours in the legal representation of Ms. Stillwell before this Court.
II. LEGAL STANDARD
Upon obtaining an award of benefits from the Commissioner, the Plaintiff or the attorney may move for an award of attorney fees pursuant to 42 U.S.C. § 406(b). Section 406(b) states in relevant part:
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). "[Section] 406(b) is the exclusive method for paying an attorney who represents a Social Security claimant [on contingency] in federal court for work done before the court." Mathews-Sheets v. Astrue, 2012 U.S. Dist. LEXIS 21193, *13 (S.D. Ind. 2012) (quoting Murkeldove v. Astrue, 635 F.3d 784, 789 (5th Cir. 2011)). "If the court awards fees under both the Social Security Act and the Equal Access to Justice Act, as it is allowed to do, only the larger of the two awards may be collected." McGuire v. Sullivan, 873 F.2d 974, 977 n. 1 (7th Cir. 1989).
A court must ensure that any § 406(b) request is consistent with the contingent-fee agreement between the claimant and his or her attorney, and that the request is within the statutory maximum of 25% of past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). However, the examination does not end there. The attorney that is requesting the fee award must also prove that the fee is reasonable. Id.
To determine a reasonable fee, the court must consider the type of services performed, the complexity of the case, the attorney's competence, the amount of time expended, the results achieved, the level of review to which the claim was taken and the amount of fee requested by the attorney under 20 C.F.R. § 404.1725(b).
Jack v. Brown,
671 F.Supp. 1211, 1211 (S.D. Ind. 1987). "If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is... in order." Barnhart, 535 U.S. at 808. The attorney should not receive a "windfall" even if that fee is within the statutory ...