[CASE CAPTION]
PLAINTIFF’S ATTORNEY’S MOTION FOR AN AWARD OF ATTORNEY FEES UNDER 42 U.S.C. § 406(b)
Plaintiff's attorney Firstname Lastname moves the Court to award $9,000.00 in attorney fees under 42 U.S.C. § 406(b). In support of this motion, Plaintiff's attorney submits the attached memorandum and exhibits.
Respectfully Submitted, ________________________ Firstname Lastname
[CASE CAPTION]
MEMORANDUM IN SUPPORT OF PLAINTIFF’S ATTORNEY’S
MOTION FOR AN AWARD OF ATTORNEY FEES UNDER 42 U.S.C. § 406(b) I. Introduction
Section 206(b)(1)(A) of the Social Security Act, 42 U.S.C. § 406(b)(1)(A), provides that a court may award a “reasonable” attorney fee not in excess of 25% of past-due benefits under Title II of the Social Security Act for an attorney's representation of a plaintiff for Title II benefits before that court. 42 U.S.C. § 406(b). Plaintiff's attorney Firstname Lastname moves the Court to award $9,000.00 as a reasonable 42 U.S.C. § 406(b) attorney fee for his or her representation of Plaintiff in this civil action. In Gisbrecht v. Barnhart, 535 U.S. 789, 122 S. Ct. 1817 (2002), the Supreme Court set forth the method for calculating a “reasonable” 42 U.S.C. § 406(b) fee. Plaintiff demonstrates below that consistent with Gisbrecht $9,000.00 is a reasonable 42 U.S.C. § 406(b) fee.
II. Procedural History
[Note: There are too many variables to draft a model procedural history. The procedural history of a 42 U.S.C. § 406(b) motion should answer basic questions. Some of the procedural history, however, may be included in later sections of the memorandum to avoid redundancy. 1. Which benefits were involved in the civil litigation? The court needs to know whether benefits under Title II and/or Title XVI of the Social Security Act were involved.
2. When did the Plaintiff file for benefits? The filing date may affect the amount of past-due benefits and be relevant to the issue of administrative delay and delay in litigation.
3. What happened during the administrative proceedings? Was there one hearing or two? Was there an Appeals Council remand? How long did the administrative proceedings last?
4. What happened in the merits litigation? How did the court dispose of the merits of the case? The court needs to know whether it disposed of the case under sentence four or sentence six of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 501 U.S. 89 (1991) (explaining difference between sentences four and six of 42 U.S.C. § 405(g)). The court needs to know whether under sentence four it reversed the Commissioner's final decision without a remand for a rehearing, i.e., for a finding of disability and award of benefits, or with a remand for a rehearing, i.e., for further administrative proceedings. If the court did not reverse the Commissioner's final decision without a remand for a rehearing, but with a remand for a rehearing, the court needs to be told about the relevant administrative proceedings on remand ending in a finding of disability and an award of benefits. How long did the civil litigation last?
5. How much past-due Title II benefits were awarded? If there are no past-due Title II benefits, then there is no 42 U.S.C. § 406(b) fee. The notice of award or similar document specifying the amount of past-due Title II benefits should be attached to the memorandum. 6. What is the contractual relationship between Plaintiff and Plaintiff's attorney? When was the attorney retained? The contract between Plaintiff and Plaintiff's attorney should be attached. 7. Was an application for attorney fees under the Equal Access to Justice Act (EAJA) filed? What was the result? If there was an EAJA award, consider attaching the award for the
convenience of the court. Ordinarily, an attorney has a duty to seek an EAJA award. Shepherd v. Apfel, 981 F. Supp. 1188, 1194 (S.D. Iowa 1997); Knagge v. Sullivan, 735 F. Supp. 411, 415 (M.D. Fla. 1990).
8. Has the attorney requested a 42 U.S.C. § 406(a) fee for work done at the administrative level? Even if a 42 U.S.C. § 406(a) fee for administrative work may not, strictly speaking, be at issue, candor with the court about all fee matters may be prudent. Informing the court about any
42 U.S.C. § 406(a) fee is especially important when the contract between Plaintiff and Plaintiff's attorney refers to 42 U.S.C. § 406(a) and 42 U.S.C. § 406(b) fees.
9. Did the attorney comply with any local rule relating to attorney fees generally or 42 U.S.C. § 406(b) motions in particular? Is a settlement conference required? Must the Plaintiff be notified in writing?]
III. Statutory Background: 42 U.S.C. § 406(a)-(b)
The Social Security Act's provisions governing fees for representation are found in 42 U.S.C. § 406; see Gisbrecht, 122 S. Ct. at 1820-23 (reviewing history of attorney fees under the Social Security Act).
Section 406(a) governs fees for representing claimants in the administrative process. 42 U.S.C. § 406(a); see Gisbrecht, 122 S. Ct. at 1821 (describing section 406(a) fees). A federal court does not determine whether to award any fee for representation under section 406(a).
Section 406(b) governs attorney fees for litigation for benefits under Title II of the Social Security Act such as Disability Insurance Benefits, 42 U.S.C. §§ 416(I), 423, and, pursuant to § 302 of Public Law 108-203, for litigation for benefits under Title XVI of the Social Security Act, namely, Supplemental Security Income, 42 U.S.C. §§ 1382, 1382a. 42 U.S.C. § 406(b).
[Note: Prior to Public Law 108-203, there was no provision of the Social Security Act for attorney fees for litigation of Title XVI claims. Thus, a federal court had no authority to award or deny attorney fees paid by a Title XVI plaintiff to his or her attorney for representation in federal court. See Bowen v. Galbreath, 485 U.S. 74 (1988).]
Section 406(b)(1) provides in part:
Whenever a court renders a judgment favorable to a claimant under this
subchapter [i.e., Title II] 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 . . . . 42 U.S.C. § 406(b)(1). The statute thus limits 406(b) awards to cases in which a Title II plaintiff actually receives due benefits as a result of litigation, limits awards to at most 25% of past-due benefits, and requires a “reasonable” fee. Id.; Gisbrecht, 122 S. Ct. at 1828 & n.15.
Section 406(b)(2) makes it a misdemeanor to charge, demand, receive, or collect an attorney fee from a Title II plaintiff other than allowed by section 406(b)(1). 42 U.S.C. § 406(b)(2). Therefore, it is a crime for an attorney to charge a Title II plaintiff a non-contingent fee. Id.; Gisbrecht, 122 S. Ct. at 1821, 1828; but cf. Hutchinson v. Bowen, 676 F. Supp. 72 (D. N.J. 1988) (discussing an attorney fee for representation of a Title II plaintiff when no past-due benefits are recovered).
IV. Statutory Background: 28 U.S.C. § 2412(d) (The EAJA).
Although this is a motion for an attorney fee under 42 U.S.C. § 406(b), the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), may also be relevant. See Gisbrecht, 122 S. Ct. at 1822 (discussing the EAJA). The EAJA is quite unlike 42 U.S.C. § 406(b). The EAJA is a fee-shifting statute wherein the United States pays attorney fees to a prevailing party when, inter alia, its “position” was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). In 1985, the EAJA was amended to harmonize its provisions with 42 U.S.C. § 406(b). Gisbrecht, 122 S. Ct. at 1822. When there is an award of attorney fees under 42 U.S.C. § 406(b) and the EAJA, a plaintiff's attorney must “refun[d] to the claimant the amount of the smaller fee.” Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat. 186; Gisbrecht, 122 S. Ct. at 1822. (This statutory amendment is not codified in the U.S.C.) There is thus a dollar-for-dollar offset of any 42 U.S.C. § 406(b) fee by an EAJA award. In other words, any EAJA award reduces what a plaintiff must pay out-of-pocket as a 42 U.S.C. § 406(b) fee. Any EAJA offset should be considered when determining
whether a requested 42 U.S.C. § 406(b) fee is reasonable. See Gisbrecht, 122 S. Ct. at 1822-23 (acknowledging substantial EAJA offsets).
V. The Gisbrecht Method
Prior to Gisbrecht, there were two methods for calculating attorney fees under 42 U.S.C. § 406(b): (1) the lodestar method and (2) the method giving effect to an attorney-client
contingent-fee agreement if the resulting fee is reasonable, sometimes called the “contingent-fee method.” Gisbrecht, 122 S. Ct. at 1823-24. Because the Gisbrecht Court adopted the latter method, id. at 1823-28, we will refer to that method as the Gisbrecht method.
A. The Overruled Lodestar Method
The lodestar method calculates an attorney fee by multiplying the number of hours reasonably expended by a reasonable hourly rate. Gisbrecht, 122 S. Ct. at 1820. The Supreme Court requires lower courts to use the lodestar method to calculate a reasonable attorney fee pursuant to fee-shifting statutes, e.g., 42 U.S.C. § 1988, a statute providing that a court may require a losing defendant to pay attorney fees to a prevailing party in a civil rights case.
Gisbrecht, 122 S. Ct. at 1820, 1825 (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). Prior to Gisbrecht, the lodestar method was used to calculate 42 U.S.C. § 406(b) fees in the Third, Fourth, Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits. See Coup v. Heckler, 834 F.2d 313 (3d Cir. 1987); Craig v. Secretary, Dep't of Health and Human Servs., 864 F.2d 324 (4th Cir. 1989); Brown v. Sullivan, 917 F.2d 189 (5th Cir. 1990); Cotter v. Bowen, 879 F.2d 359 (8th Cir. 1989); Gisbrecht v. Apfel, 238 F.3d 1196 (9th Cir. 2000); Hubbard v. Shalala, 12 F.3d 946 (10th Cir. 1993); Kay v. Apfel, 176 F.3d 1322 (11th Cir. 1999). Importantly, even under the lodestar method, a court could and should take into account the necessary contingent nature of a 42 U.S.C. § 406(b) fee. E.g., Craig, 864 F.2d at 328; Kay, 176 F.3d at 1327-28. Gisbrecht
overruled those Circuits employing the lodestar method. Gisbrecht, 122 S. Ct. at 1823-28. B. The Gisbrecht Method Giving Primacy to Attorney-Client Agreements
In contrast to the lodestar method that calculates a 42 U.S.C. § 406(b) fee looking first to a reasonable number of hours multiplied by a reasonable hourly rate, the Gisbrecht method begins by focusing on the 42 U.S.C. § 406(b) request in light of the contract between a plaintiff and his or her attorney. Gisbrecht, 122 S. Ct. at 1827-28. A contingent-fee agreement is the “primary means by which fees are set for successfully representing Social Security benefits claimants in court.” Id. at 1828. The Gisbrecht Court thus resolved the split in the Circuits in favor of the those Circuits giving “primacy” to “lawful attorney-client fee agreements.” Id. at 1820; see also id. at 1828-29 (citing with favor Wells v. Sullivan, 907 F.2d 367 (2d Cir. 1990); Rodriquez v. Bowen, 865 F.2d 739 (6th Cir. 1989); McGuire v. Sullivan, 873 F.2d 974 (7th Cir. 1989)).
Under the Gisbrecht method, a court must ensure that any 42 U.S.C. § 406(b) request is consistent with the contingent-fee agreement between the plaintiff and his or her attorney, and that the request is within the statutory maximum of 25% of past-due benefits. Id. & n.15. The contingent-fee agreement will reflect the necessary contingent nature of a 42 U.S.C. § 406(b) fee and the plaintiff's corresponding willingness to pay his or her attorney more for the attorney to accept the risk of loss. See Richard A. Posner, Economic Analysis of Law (5th ed. 1998), at § 21.9 (“A contingent fee must be higher than a fee for the same legal services paid as they are performed.”).
The Gisbrecht method does not end with an examination of the 42 U.S.C. § 406(b)
request in light of the actual contract between the plaintiff and the attorney. Gisbrecht, 122 S. Ct. at 1828-29. The attorney seeking a fee has the burden to prove that the fee request is reasonable.
Id. at 1828 & n.17. And a court must provide an “independent check” to “assure” that the fee requested is reasonable in each particular case. Id.
There are several factors that may be relevant to checking the reasonableness of a 42 U.S.C. § 406(b) request pursuant to a lawful contingent-fee agreement. “If the attorney is
responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court.” Gisbrecht, 122 S. Ct. at 1828.
Further, if “the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is . . . in order.” Gisbrecht, 122 S. Ct. at 1828. In other words, the attorney should not receive a “windfall” even if the fee is within the statutory maximum. Id. (citing Rodriquez, 865 F.2d at 747; Wells, 907 F.2d at 372). To assess these factors,
the court may require the claimant's attorney to submit, not as a basis for satellite litigation, but as an aid to the court's assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing the claimant and a statement of the lawyer's normal hourly billing charge for noncontingent-fee cases.
Id. Thus, Gisbrecht directs a court not to countenance litigation over hours and hourly rates relevant to the lodestar method. Id.
With respect to the time expended, plaintiff's attorney and the Commissioner are not to litigate over whether the attorney should have spent 25 instead of 35 hours on a merits brief. Gisbrecht, 122 S. Ct. at 1828 (warning against “satellite litigation”). Litigation over whether an attorney's non-contingent hourly rate is $175.00 or $225.00 per hour is likewise to be avoided. Id. Here it is crucial to remember that it is a crime for an attorney to charge a Title II plaintiff a non-contingent hourly rate. Id. at 1821, 1827-28. Moreover, a plaintiff's attorney may not have him- or herself a non-contingent hourly rate because the attorney may only take cases on a
contingent-fee basis.
It is also crucial to appreciate that the non-contingent hourly rate cannot dictate whether a 42 U.S.C. § 406(b) fee request is reasonable. A 42 U.S.C. § 406(b) fee request will always be a request in which the recovery of any attorney fee is contingent. Congress outlawed
non-contingent fees for Title II litigation. Gisbrecht, 122 S. Ct. at1821, 1828 (referring to 42 U.S.C. § 406(b)(2)). Therefore, a reasonable 42 U.S.C. § 406(b) fee must reflect the contingent nature of the fee. That is the central teaching of Gisbrecht: 42 U.S.C. § 406(b) fees are based on
contingent-fee agreements, and a reasonable 42 U.S.C. § 406(b) fee reflects the contingent nature of the recovery. Id. at 1826-28. But even under the overruled lodestar method, the necessary contingent nature of a 42 U.S.C. § 406(b) fee was taken into account. E.g., Craig, 864 F.2d at 328; Kay, 176 F.3d at 1327-28. Thus, when Gisbrecht allows a court to require an attorney to provide his or her “normal hourly billing charge for noncontingent-fee cases,” Gisbrecht, 122 S. Ct. at 1228, Gisbrecht merely provides a reference point to compare the reasonableness of a fee request in which the recovery is contingent.
VI. The Gisbrecht Method Applied
Plaintiff's attorney must show that the requested 42 U.S.C. § 406(b) fee of $9,000.00 is reasonable. Gisbrecht, 122 S. Ct. at 1828 & n.17 (attorney has burden to show that the fee request is reasonable). For the reasons stated below, Plaintiff's attorney satisfies that burden.
A. Lawful Contingent-Fee Agreement
The starting point is the contingent-fee request in light of the contingent-fee agreement. Gisbrecht, 122 S. Ct. at 1828. Plaintiff contracted with Plaintiff's attorney to pay 25% of past-due benefits. (Exhibit with contingent-fee agreement.) Plaintiff received as past-past-due Title II benefits $40,000.00. (Exhibit with notice of award or similar document.) Plaintiff's attorney has
moved the Court to award $9,000.00 — 23% percent of past-due benefits — as a 42 U.S.C. § 406(b) fee. Therefore, the request is not only within the statutory maximum of 25% of past-due benefits but is significantly less than Plaintiff contracted to pay.
B. Contingent Nature of the Contingent Fee
The requested 42 U.S.C. § 406(b) fee of $9,000.00 is reasonable because the requested fee reflects the contingent nature of the recovery. Gisbrecht, 122 S. Ct. at 1826-28 (explaining contingent nature of a 406(b) fee). As a class, civil actions for Social Security (and SSI) disability benefits have a significant risk of loss. The Social Security Administration keeps statistics for civil litigation for benefits. Those statistics are found in various places, including in the reports of the Congressionally-created Social Security Advisory Board (SSAB), available at http://www.ssab.gov/reports.html. In Fiscal Year 2000, federal courts found plaintiffs entitled to benefits in 6% of cases and remanded 48% of cases. SSAB, Disability Decision Making: Data And Materials (Jan. 2001), at 86, available at http://www.ssab.gov/chartbookB.pdf. On remand, about 60% of claimants are found entitled to benefits. Id. Therefore, claimants who go to court ultimately prevail about 35% (6% + (48% x 60%)) of the time. Id.. In other words, the class-based risk of loss is substantial. Other things being equal, to make up for the risk of loss, an attorney would need to charge a winning client about 2.7 times the fee the attorney would have charged a client paying on a non-contingent basis. Of course, it is a crime to charge a Title II plaintiff a non-contingent fee. 42 U.S.C. § 406(b)(2); Gisbrecht, 122 S. Ct. at 1821, 1827-28. A Title II plaintiff's attorney such as Firstname Lastname may only collect fees from plaintiffs who ultimately receive benefits.
Plaintiff's individual case also had a substantial risk of loss. This is reflected in the fact that the case had already been denied at four levels of agency review prior to the initiation of the
civil action. Further, Plaintiff's theory of disability involved fibromyalgia, a particularly difficult impairment upon which to prove entitlement to benefits. See, e.g., Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (noting subjective nature of fibromyalgia). Further, a medical expert's testimony supported the ALJ's finding of non-disability. As another indicia of riskiness, the Commissioner vigorously denied that Plaintiff was entitled to judicial relief. Such evidence and arguments supporting the ALJ's decision gave Plaintiff's case a serious risk of loss.
[Note: Look closely at the facts and circumstances of your case. What evidence can you identify that demonstrates that your case had a significant risk of loss. It may be the nature of the impairment. It may be the presence of adverse case law. Or the course of proceedings
themselves might validate the risk of loss.] C. Requested Fee Reflects the Result
The requested $9,000 fee — 23% of past-due benefits — is reasonable given that Plaintiff recouped $40,000 in wrongfully-denied past-due benefits. By way of comparison, a typical contingent fee is one-third of the recovery. See Herbert M. Kritzer, The Wages of Risk: The Returns of Contingency Fee Legal Practice, 47 DePaul L. Rev. 267, 285 (1998); cf. Continental Illinois Securities Litigation, 962 F.2d 566, 572 (7th Cir. 1992) (Posner, J.) ("We know that in personal-injury suits the usual range for contingent fees is between 33 and 50 percent”). Also by way of comparison, a contingent-fee outside of the Social Security context is typically for the past and future value of the case. Here, by statute the attorney fee comes solely from past-due Title II benefits. 42 U.S.C. § 406(b)(1). Because Plaintiff will receive not only past-due benefits wrongly denied but also ongoing Title II benefits until he or she dies, reaches retirement age, or becomes no longer disabled, the value to the Plaintiff of this civil action is not limited to the past-due benefits he or she receives. Nor, in computing the amount of the 42 U.S.C. § 406(b) fee is
the value of health care benefits attendant to Title II benefits included. Thus, the value of this case to Plaintiff is much more than the past-due benefits received.
D. Effective and Efficient Representation
Plaintiff's attorney devoted considerable time and careful attention to Plaintiff's case. As shown in the attached record of hours expended, Gisbrecht, 122 S. Ct. at 1828, Plaintiff's
attorney spent a total of thirty hours on the civil litigation. (Exhibit with time record.) Plaintiff's attorney prepared three substantive memoranda — a 15-page memorandum in support of a motion for summary judgment, a 7-page reply, and a 5-page response to the Commissioner's objections — taking, respectively, 18 hours, 4 hours, and 5 hours. In the memorandum in support of motion for summary judgment, Plaintiff's attorney raised three issues, each developed with extended legal and factual analysis.
Here, the benefits obtained — $40,000.00 — and the 42 U.S.C. § 406(b) fee requested — $9,000.00 — are not “large in comparison to the amount of time counsel spent on the case” and thus no “downward adjustment” is appropriate. Gisbrecht, 122 S. Ct. at 1828. Plaintiff's attorney spent 30 hours during the merits litigation. By way of comparison this would hypothetically result in an hourly rate of $300.00 ($9,000.00 ) 30 hours) under the lodestar method the Supreme Court overruled in Gisbrecht, 122 S. Ct. at 1824, 1826-29 (overruling the lodestar method).
For several reasons, the effective hourly rate of $300.00 does not show that the requested fee is large in comparison to the time spent on the case. This hourly rate is roughly twice EAJA's statutory rate of $142.50 for legal services performed in 2000. This was the hourly rate used to calculate the EAJA award in this case. Importantly, the EAJA's statutory rate is a non-contingent rate. Pierce v. Underwood, 487 U.S. 552, 573 (1988). Because the recovery in this case was
necessarily contingent on the receipt of past-due benefits, any reliance on a non-contingent rate without taking into account the contingent nature of a 42 U.S.C. § 406(b) fee would necessarily undercompensate Plaintiff's attorney. As Gisbrecht makes clear, 42 U.S.C. § 406(b) fees are, by law, contingent fees. Gisbrecht, 122 S. Ct. at 1825-28.
The EAJA's statutory rate is not just a non-contingent rate; the statutory rate also has an artificial cap at $125.00 per hour augmented by an increase in the cost of living or other special factor. 28 U.S.C. § 2412(d)(2)(A) (cited in Gisbrecht, 122 S. Ct. at 1822). Plaintiff's attorney has submitted three types of evidence showing that his or her non-contingent rate is $225.00 per hour. Gisbrecht, 122 S. Ct. at 1828 (referring to a “statement of the lawyer's normal hourly billing charge for noncontingent-fee cases”).
First, Plaintiff's attorney submits an affidavit showing that his or her non-contingent hourly rate is $225.00 for non-Social Security matters such as preparing a trust. (Exhibit with affidavit.) By law, of course, Plaintiff's attorney does not have a non-contingent hourly rate for Title II litigation. It is a crime to charge a Title II plaintiff a non-contingent fee. 42 U.S.C. § 406(b)(2); Gisbrecht, 122 S. Ct. at 1821, 1827. Although Plaintiff's attorney actually has a non-contingent hourly rate, an attorney seeking a 42 U.S.C. § 406(b) fee often may have no such rate because he or she only takes cases on a contingent-fee basis.
Second, Plaintiff's attorney submits a rate study showing that an attorney with his or her experience earns $200.00 to $250.00 per hour on a non-contingent basis in the relevant local marketplace for legal services. (Exhibit with rate study.) Plaintiff's attorney has practiced law in this state for 10 years and practices in a firm of three lawyers. Plaintiff's attorney also has expertise in civil litigation and appellate advocacy. [Note: Describe your skills, experience, and expertise.]
marketplace for legal services. (Exhibit with affidavits from local attorneys.) Those attorneys avow that the non-contingent hourly rate for someone with the experience of Plaintiff's attorney is $190.00 to $250.00. The affidavits confirm Plaintiff's attorney's statement that his or her non-contingent hourly rate is $225.00.
Given that Plaintiff's attorney's non-contingent hourly rate is $225.00, the requested 42 U.S.C. § 406(b) fee translating into an effective hourly rate of $300.00 is quite modest. If the risk of loss were 50%, an attorney fee comparable to an hourly rate of $450.00 would be justified. Because there was a substantial risk of loss in this case, an effective hourly rate of only $300.00 does not provide a basis for this Court to award a lower attorney fee to avoid a “windfall.” Gisbrecht, 122 S. Ct. at 1828. Manifestly, once the contingent nature of a 42 U.S.C. § 406(b) fee and Plaintiff's attorney's non-contingent hourly rate are taken into account, an effective hourly rate of $300.00 is additional evidence that Plaintiff's attorney's request is reasonable.
Plaintiff's attorney emphasizes that Gisbrecht overruled the lodestar method. Gisbrecht, 122 S. Ct. at 1820, 1824-28. Thus, when Gisbrecht mentions the time expended and an attorney's non-contingent hourly rate, Gisbrecht is not following the lodestar method but verifying that requested fee would not result in an windfall. Id. at 1828. This is why Gisbrecht admonished that
consideration of hours and hourly rates shall not be the basis for “satellite litigation.” Id. A contingent-fee agreement is the “primary means by which fees are set for successfully representing Social Security benefits claimants in court.” Id.
E. EAJA Offset as Evidence of Reasonableness
The requested fee of $9,000.00 is reasonable because given the EAJA offset, Plaintiff him-or herself will pay out-of-pocket much less than $9,000.00. See Gisbrecht, 122 S. Ct. at 1822-23 (acknowledging substantial EAJA offsets). This Court made an EAJA award of $4,500.00.
(Citation to docket or exhibit.) With the dollar-for-dollar EAJA offset, Plaintiff would actually pay only $4,500.00 ($9,000.00 - $4,500.00) — merely 11% of past-due benefits — out of pocket for Plaintiff's attorney's work in this case if this Court awarded the requested 42 U.S.C. § 406(b) fee of $9,000.00. Plaintiff's attorney's advocacy resulting in the large EAJA offset is further evidence that he or she carried his or her burden to show that the requested fee is reasonable. See Gisbrecht, 122 S. Ct. at 1828 & n.17 (attorney has burden to show that the fee request is reasonable).
F. Responsibility for Delay
If an attorney is responsible for delay in the litigation, the attorney should not profit from the delay. Gisbrecht, 122 S. Ct. at 1828. In this case, there were about four years of past-due benefits. During that time, Plaintiff's attorney sought and received a total of two extensions of thirty days each. (Citation to the docket.) These extensions were needed because Plaintiff's attorney was occupied with other matters needing immediate attention. Plaintiff's attorney has already accounted for the two months of delay in the fee request of $9,000.00 below the $10,000.00 statutory
maximum at 25% of past-due benefits. The actual increase in the amount of past-due benefits attributable to the two months of extension was $1,600.00 (2 months x $800.00 per month). One-quarter of two months of benefits is $400.00. Plaintiff's attorney has reduced his or her 42 U.S.C. § 406(b) request by $1,000.00, i.e., much more than $400.00. Plaintiff's attorney's request for a 42 U.S.C. § 406(b) fee of $9,000.00 thus shows moderation.
VII. Conclusion
The Gisbrecht method gives primacy to the contingent-fee agreement between a plaintiff and his or her attorney. Under Gisbrecht, the first question is whether the 42 U.S.C. § 406(b) fee requested is reasonable in light of the contingent-fee agreement. A court then provides an independent check to assure that the requested fee is reasonable. For the reasons set forth above,
Plaintiff's attorney has shown that the requested 42 U.S.C. § 406(b) fee of $9,000.00 is reasonable. After an independent check, this Court should also conclude that the requested fee is reasonable.
Respectfully Submitted, ________________________ Firstname Lastname
