Opinion
Case No. 1:18-cv-13940
2023-02-15
Jeffrey Jason BURGETT, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
William W. Watkinson, Jr., Bernstein and Bernstein, Lathrup Village, MI, David Chermol, Chermol & Fishman, LLC, Philadelphia, PA, for Plaintiff. Christopher L. Potter, Hugh Dun Rappaport, Jason Scoggins, James J. Nagelberg, Social Security Administration Social Security Administration, Baltimore, MD, Vanessa Miree Mays, DOJ-USAO, Farmington Hills, MI, for Defendant.
William W. Watkinson, Jr., Bernstein and Bernstein, Lathrup Village, MI, David Chermol, Chermol & Fishman, LLC, Philadelphia, PA, for Plaintiff. Christopher L. Potter, Hugh Dun Rappaport, Jason Scoggins, James J. Nagelberg, Social Security Administration Social Security Administration, Baltimore, MD, Vanessa Miree Mays, DOJ-USAO, Farmington Hills, MI, for Defendant.
OPINION AND ORDER GRANTING IN PART MOTION FOR ATTORNEY'S FEES UNDER 42 U.S.C. § 406(b) AND DIRECTING REFUND OF EAJA FEES
THOMAS L. LUDINGTON, United States District Judge
In December 2018, Plaintiff Jeffrey Jason Burgett filed a complaint here, appealing the denial of Social Security benefits. ECF No. 1. In March 2020, This Court granted summary judgment in favor of the Commissioner of Social Security and affirmed the denial of benefits. ECF No. 27. Plaintiff appealed, and the Sixth Circuit remanded the case for an Appointments Clause violation. Burgett v. Comm'r of Soc. Sec., No. 20-1350, 2021 WL 4955264 (6th Cir. Aug. 19, 2021). In October 2021, the case was remanded to a new ALJ to for new proceedings. ECF No. 36.
After remand, Plaintiff's Counsel filed a motion for $37,153.50 in attorney's fees under 42 U.S.C. § 406(b)(1). ECF No. 37. He explains that he prevailed on remand before the ALJ, who awarded $148,612.00 in past-due benefits beginning in June 2014. Id. at PageID.918-23.
I.
Courts may award attorney's fees not to exceed 25% of a claimant's past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (citing 42 U.S.C. § 406(b)(1)). If awarded, then any EAJA award must be returned to the plaintiff. Id. at 796, 122 S.Ct. 1817. The court must conduct a "review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases." Id. at 807, 122 S.Ct. 1817.
II.
The Sixth Circuit has established a "rebuttable presumption that an attorney would receive the full 25% contingency fee under contract unless 1) the attorney engaged in improper conduct or was ineffective, or 2) the attorney would enjoy an undeserved windfall due to the client's large back pay award or the attorney's relatively minimal effort." Hayes v. Sec'y of Health & Hum. Servs., 923 F.2d 418, 419 (6th Cir. 1990). There is no improper conduct or ineffectiveness at issue.
Plaintiff's Counsel requests $37,153.50 in attorney's fees—25% of Plaintiff's past-due award—for 43.3 hours of work. ECF No. 37. Because the case was remanded to the ALJ, this Court may only "set the fee—limited to 25 percent of past-due benefits—for the work performed before it." Horenstein v. Sec'y of Health & Hum. Servs., 35 F.3d 261, 262 (6th Cir. 1994) (en banc).
Plaintiff's Counsel's request is presumptively reasonable because it complies with § 406(b)'s 25% cap. Lasley v. Comm'r of Soc. Sec., 771 F.3d 308, 309 (6th Cir. 2014) (citations omitted). Yet Defendant argues the proposed award would not be reasonable. ECF No. 39.
Plaintiff's Counsel's request would provide a windfall because it is more than double the 95th percentile of hourly rates. The proposed $37,153.50 for 43.3 hours of work averages $858.05 per hour. The median hourly rate for a public-benefits attorney is $175 an hour, $265 for the 75th percentile, and $350 for the 95th percentile. Daniels v. Comm'r of Soc. Sec., No. 1:19-CV-11782, 2021 WL 9217137, at *2 (E.D. Mich. Aug. 3, 2021) (citing STATE BAR OF MICHIGAN, ECONOMICS OF LAW PRACTICE IN MICHIGAN 11 (2020), https://www.michbar.org/file/pmrc/articles/0000156.pdf [https://perma.cc/8KLR-DD8D]). There is no windfall in a case with a contingent-fee contract if the quotient of "the number of hours worked for the claimant [and] the amount of the fee permitted under the contract is less than twice the standard rate for such work in the relevant market." Hayes, 923 F.2d at 422. Here, it is more than double. So it must be reduced.
And Plaintiff's Counsel's billing does not demonstrate efficiency. Plaintiff's Counsel claims he is "one of the premier disability attorneys in the nation." ECF No. 37 at PageID.914. Defendant does not contest this statement. See generally ECF No. 39. So Plaintiff's Counsel's rate will be reduced to the 95th percentile range for Michigan's public-benefits attorneys: $350 per hour. Yet, if so, then 43.3 hours was not efficient. See Vandenboom v. Comm'r of Soc. Sec., No. 1:21-CV-00575, 2022 WL 18587036, at *1 (W.D. Mich. Apr. 27, 2022) ("[W]ithin the Sixth Circuit, . . . 20 to 30 hours [i]s the normal range of time spent on the mine-run Social Security appeal."). Indeed, he won on appeal based on other attorneys' cases. See ECF No. 39 at PageID.940 (first citing Ramsey v. Comm'r Soc. Sec., 973 F.3d 537, 546 (6th Cir. 2020); and then citing Carr v. Saul, — U.S. —, 141 S. Ct. 1352, 1362, 209 L.Ed.2d 376 (2021)). So his compensation will be reduced to that for 30 hours at the $350 rate: $10,500. See Gisbrecht v. Barnhart, 535 U.S. 789, 808, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (citations omitted) ("If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order."). Given "the 'brevity' and 'relative simplicity' of the representation" on appeal, this award is reasonable. Lasley, 771 F.3d at 310; see also Gisbrecht, 535 U.S. at 812, 122 S.Ct. 1817 (Scalia, J., dissenting); cf. Matthew N. Preston II, The Tweet Test: Attributing Presidential Intent to Agency Action, 10 BELMONT L. REV. 1, 35-36 (2022) (suggesting that courts should only make reasonable inferences).
III.
Accordingly, it is ORDERED that Petitioner's Motion for Attorney's Fees, ECF No. 37, is GRANTED IN PART and DENIED IN PART. Plaintiff's Counsel is GRANTED $10,500.00 for attorney's fees. And Plaintiff's Counsel is DIRECTED to refund the $2,500.00 EAJA award to Plaintiff promptly.