Terese F. v. Saul
Opinion of the Court
Plaintiff's counsel has moved for approval of attorney's fees to be paid out of the plaintiff's past-due benefits pursuant to
*875The Commissioner agreed to remand this case upon initial review by the district court prior to any briefing. [Dkt. ##13, 14]. On remand from this court, an Administrative Law Judge for the Social Security Administration determined that plaintiff was disabled and entitled to benefits, including $51,379.00 in past-due benefits. Plaintiff and her counsel had a contingency fee agreement whereby she would pay counsel 25% of any award. While counsel does not inform the court what the past due benefit amount was, he does say that his contingency fee would come to $12,844. [Dkt. #23, at Pars. 3, 9]. Despite this, counsel is moving for a discounted award of $5,689.12, after an offset/credit of $989.76 [Dkt. #23, at 6], because he did not brief the case. [Dkt. # 23, at 4]. According to counsel's Summary of Attorney Hours, that's an effective hourly rate of over $1,200 per hour [Dkt. ##23, at 3; 23-1]- an amount greater than the hourly rate generally charged by senior lawyers in the Nation's largest law firms!
A court assesses a Section 406(b) fee request "by looking first to the contingent-fee agreement, then testing it for reasonableness." Gisbrecht v. Barnhart ,
Further review of the docket also calls into question the amount of work claimed. Counsel says he spent .4 hours reviewing court Order(s) on June 27, 2017 [Dkt. # 23-1]. But as of June 27th, no Orders had yet been entered; the first having been entered on June 30th. Maybe that was an error and counsel spent that time on something else. But compounding that error is the fact that counsel argues that "[h]ad counsel been less experienced and efficient, and had he spent more time on the case, his computed hourly rate would have been lower.... Punishing counsel for efficiency is what this Court would be doing if it cut the requested fee." [Dkt. # 23, Par. 22]. Again, counsel's efficiency never entered into these proceedings. He filed a Complaint and did nothing else. The court conducted an initial review of the record and the ALJ's decision without any briefing, and informed the Commissioner of issues the court had with the decision. The Commissioner then conducted a thoughtful review and chose to voluntarily remand. Given that reality, it is not at all a question of "efficiency." In any event, the point is, even given a reduced contingency rate of 13%, $6,678.88 is a substantial award given the circumstances.
But, counsel tells us his "work in the present case merits an entire award of *87613% of past due benefits ...because of his experience, skill, and particularly the risk he assumed of no award at all." [Dkt. # 23, ¶. 14](Emphasis supplied). But, "[g]eneral propositions do not decide concrete cases." Lochner v. New York ,
The cases counsel cites as examples of similarly high fee awards - Kirby v. Berryhill ,
In the end, the instant fee petition does not accurately recount what happened and thus does not support the requested award of $6,678.88. Thus, an overall award of $3000, less the $989.76 offset/credit is an appropriate fee award here. It is in keeping with the amount of effort that was required in this case. As we said at the outset, in coming to this conclusion, we do not in the slightest mean to denigrate the skill or efforts of counsel. Far from it. But here, as in all cases, realities must dominate the judgment. Copperweld Corp. v. Independence Tube Corp. ,
The technique of brief writing that puts out of view the existence of principles and/or cases that are central to a meaningful analysis has been rejected by the Seventh Circuit. See e.g. , Hill v. Norfolk & Western Ry. Co. ,
Reference
- Full Case Name
- TERESE F. v. Andrew SAUL, Commissioner of Social Security
- Cited By
- 2 cases
- Status
- Published