United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTIONS FOR ATTORNEY'S FEES
J. Dinsmore United States Magistrate Judge
matter is before the Court on Plaintiff's Motions for
Attorney's Fees. [Dkt. 31; Dkt. 36;
Dkt. 44.] For the reasons set forth below, the Court
GRANTS Plaintiff's Second Amended
Motion for Attorney's Fees [Dkt. 44] and
DENIES AS MOOT Plaintiff's remaining
motions [Dkt. 31; Dkt. 36].
August 18, 2017, Plaintiff filed a complaint seeking to
reverse the decision of the Commissioner of Social Security
denying his application for Social Security benefits.
[Dkt. 1.] On December 27, 2017, the Court reversed
the Commissioner's decision and remanded the case to the
Social Security Administration for further proceedings.
[Dkt. 25.] Plaintiff received an award of
attorney's fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d)(1)(A), in the
amount of $943.50. [Dkt. 30.]
second administrative hearing was held, and the
Administrative Law Judge (“ALJ”) issued a
favorable decision. [Dkt. 31-4.] On December 13,
2018, Plaintiff's counsel filed a motion for reasonable
attorney's fees pursuant to Section 406(b) of the Social
Security Act, and submitted therewith a copy of the fee
agreement providing for twenty-five percent of the past-due
benefits resulting from the claim. [Dkt. 31.]
January 17, 2019, Plaintiff's counsel filed an amended
motion for attorney's fees, seeking a reduced award of
$12, 013.07. [Dkt. 36.] Defendant objected, arguing,
among other things, that the requested amount constituted a
windfall to Plaintiff's counsel. [Dkt. 37.]
After a hearing, Plaintiff's counsel filed a second
amended motion for attorney's fees, further reducing his
request to $6, 500.00. [Dkt. 44.] The Commissioner
does not object to Plaintiff's Second Amended Motion.
[Dkt. 45.] These Motions are now before the Court.
406(b) of the Social Security Act provides that a district
court may grant “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” as part of a judgment in favor of the
claimant in a disability benefit appeal. 42 U.S.C. §
406(b)(1)(A). In addition to the allowance of fees pursuant
to § 406(b), the EAJA mandates that a court award
attorney's fees and other expenses to the prevailing
party in civil actions against the United States (such as
disability benefit appeals to the federal court).
See 28 U.S.C. § 2412(d)(1)(A). When a
prevailing claimant's attorney qualifies for 406(b) fees
but has already received a fee award pursuant to the EAJA,
“such award offsets the allowable fee under §
406(b).” Koester v. Astrue, 482 F.Supp.2d
1078, 1080 (E.D. Wis. 2007); see also Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002); Astrue v.
Ratliff, 560 U.S. 586, 595-96 (2010). Even where an
attorney's 406(b) motion for fees is not opposed, the
Court must review the outcome of any contingent fee
arrangements “as an independent check, to assure that
they yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807.
counsel seeks an award of attorney's fees in the amount
of $6, 500.00, which is less than 25 percent of the total
past-due benefits awarded to Plaintiff. The Supreme Court in
Gisbrecht found that § 406(b) was designed
“to control, not to displace, fee agreements between
Social Security benefits claimants and their counsel.”
535 U.S. at 793. Those controls include the following
parameters: (1) attorney fees may only be obtained if the
claimant is awarded back benefits; (2) attorney fees are
awarded from, not in addition to, those back benefits; and
(3) attorney fees cannot exceed 25 percent of the back
benefits. Id. at 795. Here, Plaintiff was awarded
back benefits, so an award of § 406(b) attorney's
fees is appropriate. [Dkt. 31-5.]
25 percent of the award of past-due benefits is not
presumptively reasonable “[i]f the benefits are large
in comparison to the amount of time counsel spent on the
case.” Gisbrecht, 535 U.S. at 808. Within the
Seventh Circuit, fee awards equivalent to hourly rates
ranging from $400 to $600 are consistently found to be
reasonable. See, e.g., Zimmerman v. Astrue,
No. 1:08-cv-00228, 2011 WL 5980086, at *3 (N.D. Ind. Nov. 29,
2011) (approving an award equivalent to an hourly rate of
$410); Duke v. Astrue, No. 1:07-cv-00118, 2010 WL
3522572, at *3-4 (N.D. Ind. Aug. 30, 2010) (approving award
equivalent to an hourly rate of $549.14); Schimpf v.
Astrue, No. 1:06-cv-00018, 2008 WL 4614658, at *3 (N.D.
Ind. Oct. 16, 2008) (approving award equivalent to an hourly
rate of $583.50). Courts have, however, occasionally given
fees outside this range when warranted, such as when
plaintiff's counsel “handle[s] [the] case in a very
efficient manner.” Fitzpatrick v. Berryhill,
No. 1:15-cv-1865-WTL-MJD, Dkt. 33 at 2 (S.D. Ind. October 31,
2017). Plaintiff's counsel states that he billed a total
of 5.1 hours on this case. [Dkt. 44-2 at 2.] Thus,
dividing $6, 500 (i.e., the award counsel has requested under
406(b)) by the 5.1 hours spent on the case, the hourly rate
comes to $1, 274.51. While outside the typical range, this
amount is still consistent with previous fees awarded by
courts in the Seventh Circuit when circumstances permit.
See Fitzpatrick, No. 1:15-cv-1865-WTL-MJD, Dkt. 33
(approving an award equivalent to an hourly rate of between
$1, 045 and $2, 908).
Plaintiff also received an award of $943.50 in EAJA fees.
Generally, such an award offsets Plaintiffs 406(b) award.
Koester, 482 F.Supp.2d at 1080. Plaintiffs counsel
has asked the Court to order him to refund this amount to
Plaintiff upon receipt of the 406(b) award. [Dkt. 31-2 at
7.] However, the Court has found it more efficient to
offset the EAJA award from the requested counsel's fees.
See Cale v. Colvin, No. 1:12-cv-01527-MJD-RLY, Dkt.
30 at 3 (S.D. Ind. Sept. 24, 2015). Thus, to prevent
exceeding the 25 percent maximum fee, the Court offsets the
$943.50 EAJA award by subtracting it from the requested $6,
500 amount. This reduces Plaintiffs counsel's fee request
to $5, 556.50.
aforementioned reasons, the Court GRANTS
Plaintiffs Second Amended Motion for Attorney's
Fees [Dkt. 44] in the amount of $5, 556.50 to
be paid directly to Plaintiffs counsel. The Court also
DENIES AS MOOT Plaintiff s First Motion
for Attorney's Fees [Dkt ...