Opinion
5-20-CV-00121-OLG
12-15-2023
PATRICIA A. GONZALES, Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY; Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando L. Garcia:
Before the Court is Plaintiff Patricia Gonzales's Motion & Brief for Attorney Fees Pursuant to 42 U.S.C. § 406(b) and Defendant's Response. See Dkt. Nos. 23 & 24. The Motion was referred for resolution by the District Court. See Sept. 13, 2023, Text Order Referring Motion. Authority to enter this order stems from 28 U.S.C. § 636(b).
For the reasons set forth below, the Court recommends the Motion, Dkt. No. 23, be GRANTED. Gozales's counsel should be awarded 25% of the total $78,614.00 award, minus the $8,800 already awarded to counsel on Gonzales's behalf pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). See Dkt. No. 21.
The Court notes that when it independently reviewed and totaled the amounts listed in the Notice of Past Due Benefits, it obtained a sum of $78,614.00 rather than the total of $78,558.12 indicated in the Motion. The Court assumes this is a mere clerical error, and it addresses this discrepancy here only to ensure the amount billed to the client is accurate. If the Court's total is correct, then the award should be as follows: ($78,614.00 * 0.25) - $8,800 = $10,853.50. If the Court's math is in error, this issue can be addressed by the District Court via timely objection to this Report and Recommendation. No further briefing before the Magistrate Judge is needed.
Factual and Procedural Background
Plaintiff Patricia Gonzales initiated this proceeding on February 2, 2020, seeking judicial review of the final decision of the Commissioner denying her claim for disability-insurance benefits under Title II of the Social Security Act. See Dkt. No. 1. Gonzales timely filed a brief setting for the errors that she contended entitled her to relief. See Dkt. No. 15. The Commissioner then requested, and the Court correspondingly ordered, that the case be remanded for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Dkt. Nos. 17 & 18. On motion for fees from Gonzales, the District Court awarded Gonzales $8,800 in fees, pursuant to the Equal Acccess to Justice Act (“EAJA”). See Dkt. Nos. 19, 20 & 21.
The Commissioner later granted Plaintiff Gonzales past-due benefits. See Dkt. Nos. 23 & 23-1. Gonzales's attorney now seeks an award of $10,839.53, which represents 25% of counsel's $78,558.12 figure for past-due benefits-totaling $19,639.53-minus the earlier $8,800 EAJA award. Dkt. No. 23. The Commissioner, who has “no direct financial stake” in fees awarded pursuant to § 406(b), declined to take a position on the reasonableness of the fees requested. See Dkt. No. 30 at 1. But the Commissioner points out that any reasonableness determination must be based on the full amount of fees sought, not just the net award. See id. at 4. As mentioned in footnote 1, the Court notes a small clerical error in the calculations, which the Court has endeavored to address herein.
Analysis
Under § 406(b), when an attorney obtains a favorable decision on remand, “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); Jackson v. Astrue, 705 F.3d 527, 531 (5th Cir. 2013). Although courts may award fees under both the EAJA and § 406(b), the claimant's attorney must refund the amount of the smaller fee to the claimant. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Section 406(b) additionally requires an attorney seeking fees to demonstrate that the requested fees are reasonable within the prescribed 25% ceiling. Id. at 807.
Courts may not exclusively rely on the lodestar method to determine whether requested § 406(b) fees are reasonable. Jeter v. Astrue, 622 F.3d 371, 374 (5th Cir. 2010). Instead, courts typically consider various additional factors, such as “risk of loss in the representation, experience of the attorney, percentage of the past-due benefits the fee constitutes, value of the case to a claimant, degree of difficulty, and whether the client consents to the requested fee.” Id. at 382 (cleaned up). Courts must first “articulate additional, specific factors” before making any downward adjustments to an unearned windfall, as “an excessively high hourly rate alone does not render an otherwise reasonable fee unreasonable.” Id.
Having reviewed the motion, the supporting documentation provided, and the record as a whole, the Court finds the requested fees are reasonable, assuming a small adjustment is made to correct what appears to be a minor arithmetic error. First, the fee agreement between Plaintiff Patricia Gonzales and her counsel expressly authorizes a contingent fee of up to 25% of past-due benefits. See Dkt. No. 23-2 (Social Security Retainer and Fee Agreement). Next, Gonzales's counsel faced a substantial risk of loss in taking Castillo's case. See Hartz v. Astrue, No. 084566, 2012 WL 4471846, at *6 (E.D. La. Sept. 12, 2012) (noting “high risk of loss inherent in Social Security appeals” and collecting cases). Gonzales's counsel also provided effective representation. Gonzales's appeal was successful, and ultimately resulted in Gonzales being awarded past-due benefits totaling $72,396.60 by the Court's calculation and $78,558.12 by counsel's calculation, plus ongoing monthly benefits. See Dkt. No. 23-1 (notice of award). Finally, the hourly billing rate resulting from the contingency fee is reasonable. Counsel billed 55.1 hours in attorney work at the federal-court level, which counsel reduced to 44.0 hours for purposes of seeking EAJA fees. See Dkt. No. 19-1. Dividing the total amount of the 25% contingency fee of $19,639.53, as calculated by counsel, by the 44.0 hours reasonably worked results in an attorney-billing rate of $446.35 per hour. Although this rate is higher than the noncontingent rate of $200.00 per hour requested in counsel's motion for EAJA fees, see Dkt. No. 19-1, it is within the range of rates commonly permitted by courts under similar circumstances. The Court also finds this rate reasonable given the results achieved in this case, the amount of the overall award, and the substantial risk of loss facing a claimant in a socialsecurity appeal. Further, there is nothing in the record suggesting a downward adjustment is warranted. Accordingly, the requested fees are reasonable.
See, e.g., Daigle v. U.S. Comm'r, Soc. Sec. Admin., No. 6:16-CV-01445, 2019 WL 1103554, at *3 (W.D. La. Mar. 8, 2019) (approving $848.74 effective hourly rate); Keel v. Berryhill, No. 3:15CV00183-JMV, 2018 WL 5839676, at *2 (N.D. Miss. Nov. 7, 2018) (approving $744.45 effective hourly rate); Richardson v. Colvin, No. 4:15-CV-0879-BL, 2018 WL 1324951, at *2 (N.D. Tex. Mar. 13, 2018) (approving $937.50 effective hourly rate, which represented 2.5 times the standard hourly rate for such services); Wilson v. Berryhill, No. 3:13-CV-1304-N-BH, 2017 WL 1968809, at *2 (N.D. Tex. April 7, 2017) (same).
Conclusion
For the reasons discussed above, the Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b), Dkt. No. 23, is GRANTED. Gonzales's counsel is awarded $10,853.50 in attorney's fees, which shall be paid out of Gonzales's past-due benefits in accordance with agency policy.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.