UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brian Nichols

v. Civil No. 14-cv-382-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

After this matter was remanded to the Social Security

Administration (“SSA”), the SSA granted disability insurance

benefits (“DIB”) to Brian Nichols. Before the court is a motion

for attorneys’ fees, pursuant to

(b), filed by

Nichols’ counsel. For the reasons that follow, that motion is

granted in part.

I. Background

In August of 2014, after being denied DIB by the SSA,

Nichols entered into a contingent fee agreement with attorney

Francis M. Jackson for representation in this court on an appeal

from the SSA’s adverse decision. In that agreement: (1) Nichols

acknowledged that attorney Jackson’s services would ordinarily

be billed at an hourly rate of more than $350; (2) attorney

Jackson agreed to take no fee if he was unsuccessful in securing

an award of past-due benefits; and (3) Nichols agreed to pay

attorney Jackson “a fee equal to twenty five percent (25%) of the total amount of any past-due benefits awarded to [him].”

Doc. no. 10-2, at 2.1

In September of 2014, two lawyers from Jackson’s firm,

Karen Fitzmaurice and Penelope Gronbeck, filed: (1) a complaint

seeking judicial review of the SSA’s decision; (2) a motion for

attorney Gronbeck to appear pro hac vice; and (3) a motion to

proceed in forma pauperis. In December, the SSA filed an

assented to motion to remand the matter under sentence four of

(g), and judgment was entered in Nichols’ favor.

Nichols then moved for $615.81 in fees and expenses under the

Equal Access to Justice Act (“EAJA”),

. The

amount of that request was based upon 2.85 hours of attorney

work (billed at $192.39 per hour) and .75 hours of paralegal

work (billed at $90 per hour). The Acting Commissioner

stipulated to the motion, and the court granted it. In an

1 The agreement explains the rationale for the contingent fee this way:

The parties have agreed to a full twenty five percent, rather than a lesser “reasonable” amount calculated on an hourly basis because the client acknowledges that there is a high risk of failure and resulting non- payment in these cases and that as result the only way the attorney can afford to do these cases is to charge and collect a contingent fee sufficient to not only pay a reasonable fee when he is successful but also sufficient to pay personnel costs and other office overhead expended on those cases where he is unsuccessful and receives no payment.

Doc. no. 10-2, at 3.

2 affidavit submitted in support of the EAJA fee request, attorney

Jackson testified that he represented Nichols in this matter and

that he has been paid at “rates of $395.00 or more per hour

. . . in Social Security cases by ALJ’s.” Doc. no. 8-2, at 2.

On remand, Nichols received a favorable decision from the

SSA and an award that included $45,514 in past-due benefits. In

addition, the SSA approved a payment of $6,000 in attorneys’

fees pursuant to

(a).2

This motion followed. In it, claimant’s counsel seeks

$5,378.50 in fees, to be paid out of Nichols’ award of past-due

benefits. The amount counsel seeks, plus the $6,000 already

approved by the SSA, minus the EAJA award of $615.81,3 would

bring the attorneys’ fees in this case up to $11,378.50, which

is 25 percent of the total amount of past-due benefits the SSA

awarded to Nichols. Given the 3.6 hours that Nichols’ counsel

put into this case, the fee he seeks works out to an hourly rate

of $1,494.03.

2 Section 406(a) governs fees for representation before the Commissioner of Social Security, while § 406(b), under which the instant motion has been brought, governs fees for representation before the court.

3 “Fee awards [for representation before the court] may be made under both [the EAJA and § 406(b)], but the claimant’s attorney must ‘refun[d] to the claimant the amount of the smaller fee.’” Gisbrecht v. Barnhart,

(2002) (quoting Act of Aug. 5, 1985,

,

).

3 II. Discussion

Nichols has expressed no opinion on his counsel’s motion

for fees. The Acting Commissioner, however, has filed a

response in which she neither assents nor objects to the amount

that counsel requests but, rather, seeks to assist the court in

determining whether the fee that Nichols’ counsel requests is

reasonable. She then goes a step further, proposing two

alternative calculations, each of which yields a § 406(b) fee

that is significantly lower than the amount counsel requests.

In the discussion that follows, the court begins with the

applicable law, and then applies the law to the facts of this

case. The Social Security Act provides, in pertinent 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 . . .

(b)(1)(A).

In Ezekiel v. Astrue,

(D. Me. 2012),

Judge Hornby was presented with a factual scenario remarkably

similar to the circumstances of this case: (1) a remand from the

district court secured after claimant’s counsel had put in

between three and four hours of work; (2) an award of past-due

benefits by the SSA; and (3) a request for fees from the award

4 that would have brought the claimant’s attorney’s fee to a full

25 percent of the past-due benefits awarded to the claimant.

Judge Hornby, however, awarded less than the claimant’s counsel

had requested. In so doing, he was guided by the U.S. Supreme

Court’s decision in Gisbrecht v. Barnhart,

(2002).

In Gisbrecht, attorneys for three Social Security claimants

sought fees, under

(b), in amounts that brought

their total fees up to 25 percent of their clients’ awards of

past-due benefits. See

. The Court’s key legal

ruling was that when considering a request for fees under

§ 406(b), the starting point for determining the reasonableness

of the requested fee is the contingent-fee agreement between the

claimant and his or her attorney, rather than the so-called

lodestar, i.e., a figure calculated by multiplying the

attorney’s hourly rate by the number of hours spent on legal

work. See id. at 807. However, the Court also observed that

“[i]f the benefits are large in comparison to the amount of time

counsel spent on the case, a downward adjustment [from the

amount allowed by a contingent-fee agreement] is . . . in

order.” Id. at 808 (citing Rodriquez v. Bowen,

(6th Cir. 1989) (noting that 25 percent contingency fee is “a

starting point for the court’s analysis . . . [but] not to be

viewed as per se reasonable” and that deductions are appropriate

in “situations in which counsel would otherwise enjoy a windfall

5 because of either an inordinately large benefit award or from

minimal effort expended”).

In Ezekiel, Judge Hornby found that a past-due benefit of

$49,704 was large, in comparison to the 3.1 hours of work

performed by the claimant’s counsel to secure the remand that

paved the way for the subsequent award of benefits. See

; see also Ellick v. Barnhart,

) (C.D. Cal. 2006) (“the $68,097 in past-due benefits

Plaintiff recovered is large in comparison to the [16.2 hours of

attorney time and 4.7 hours of paralegal time] spent on the case

by counsel’s office”). As it happens, the claimant’s counsel in

Ezekiel was attorney Jackson, who also represented Nichols in

this case. That said, in reliance upon Gisbrecht, Judge Hornby

awarded a § 406(b) fee of $3,675, rather than the $6,426

requested by the claimant’s counsel. See id. at 181. He

determined the amount of the award by multiplying the 3.1 hours

of work identified in the EAJA application by an hourly rate of

$395,4 and then tripling the result of that calculation. See id.

As a result, the fee Judge Hornby awarded amounted to an hourly

rate of $1,185. He explained his decision to triple the

lodestar this way:

4 In Ezekiel, attorney Jackson testified, via affidavit, that in at least one Social Security case, an ALJ had approved an hourly rate of $395 for his services.

6 I take into account that litigating in federal court is generally a more expensive and difficult practice than in state court; that there must be significant profit in successful contingent fee cases so that lawyers can continue that form of practice and so that claimants can find legal representation (representation would often be unavailable without the contingent fee arrangement); and that this lawyer [i.e., attorney Jackson] has been specializing in these cases for many years and has become proficient and efficient.

Id.

In Beaulieu v. Colvin, which involved facts similar to

those of this case and Ezekiel, and the same lawyer, Magistrate

Judge Rich followed Judge Hornby’s approach. See Beaulieu, No.

1:10-cv-454-GSZ,

, at *4 (D. Me. Jan. 28, 2016),

R & R affirmed by

(Feb. 18, 2016). Specifically,

he awarded a § 406(b) fee of $5,214, rather than the $26,500

requested by the claimant’s counsel. He determined the amount

of the § 405(b) award by multiplying 4.4 hours of legal work by

an hourly rate of $395, and then tripling the result of that

calculation.5

This court is persuaded by Ezekiel and Beaulieu, and adopts

the general approach applied in those decisions. In addition,

as in Ezekiel, see

, the court draws the

5The 4.4 hours of legal work in Beaulieu was composed of 3.55 hours of attorney time plus .85 hours of paralegal time that was treated as attorney time. See

, at *1, *3.

7 number of hours of compensable time from the request for fees

under the EAJA, to which the Acting Commissioner stipulated, and

thus declines to deduct the 1.1 hours that counsel spent on the

case before filing the complaint. And, as in Beaulieu, see

, at *3, the court treats the .75 hours of paralegal

time identified in the EAJA request as attorney time. By

applying the foregoing principles to the facts of this case, the

court concludes that Nichols’ counsel is entitled, under

(b), to an award of $4,266, based upon 3.6 hours of

work, at $395 per hour, times three.

III. Conclusion

For the reasons detailed above, claimant’s motion for

attorneys’ fees (doc. no. 10) is granted to the extent that

Nichols’ counsel is entitled to an award of $4,266 from Nichols’

award of past-due benefits, with the proviso that counsel shall

remit the EAJA award of $615.81 to Nichols.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

September 26, 2016

cc: Karen B. Fitzmaurice, Esq. Penelope E. Gronbeck, Esq. Michael T. McCormack, Esq.

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