United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
February 11, 2014, this court issued an order reversing the
decision of the Commissioner and remanding the case for
further hearing (Doc. 18). On April 28, 2014, this court
approved an order for attorney fees under the EAJA in the
amount of $6, 250.00 (Doc. 22). On remand, benefits were
again denied. On February 17, 2015, this court again reversed
and remanded the case for further proceedings (Case No.
14-2545-JWL; Doc. 15).
September 21, 2016, defendant issued a notice of award to the
plaintiff. Plaintiff was awarded disability benefits from
Social Security beginning February 2009 (Doc. 23-2).
Plaintiff filed a motion for attorney fees under 42 U.S.C.
§ 406(b) (Doc. 23-24). Defendant has no objection to an
award of attorney fees in the amount requested (Doc. 25).
206(b) of the Social Security Act (“SSA”), 42
U.S.C. § 406(b), provides that “[w]henever a court
renders a judgment favorable to a claimant ... the court may
determine and allow as part of its judgment a reasonable
[attorney] fee ... not in excess of 25 percent of the past
due benefits.” This provision allows the Court to award
attorney fees in conjunction with a remand for further
proceedings where plaintiff ultimately recovers past due
benefits. Wrenn ex rel. Wrenn v. Astrue, 525 F.3d
931, 933 (10th Cir. 2008). Where plaintiff has agreed to a
contingency fee arrangement, the Court must review the
agreement as an independent check to assure that it yields a
reasonable result in the particular case. Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002).
and her attorney entered into a contingent fee agreement
whereby plaintiff agreed to pay her attorney 25% of her
retroactive disability benefits if she received an award of
disability benefits. Plaintiff received a retroactive award
of $100, 007.80. Plaintiff's counsel seeks attorney fees
of $18, 421.50. Counsel spent 38.8 hours for attorney time
related to this court action. The fee request thus represents
an effective hourly rate of $474.78 (Doc. 23).
case of Grace v. Colvin, 2015 WL 7102292 at *1-2,
Case No. 12-1017-JWL (D. Kan. Nov. 13, 2015), the
Commissioner had withheld $28, 077.65 (25% of the past-due
benefits) from her award to plaintiff, to be applied to
payment of that fee. Counsel's agreement with plaintiff
was for 25% of past-due benefits. However, counsel only
requested a fee of $17, 000.00 for 39.35 hours of work. This
represented an hourly rate of $432.02. The court found that
the attorney fee of $17, 000.00 was reasonable in the
circumstances of that case.
case of Russell v. Astrue, 509 F.3d 695, 696-697
(10th Cir. Jan. 31, 2013), the court found that an
hourly rate of $422.92 was not beyond the bounds of
reasonable judgment or permissible choice (this represented a
reduction from an effective hourly rate of $611 requested by
counsel). In the case of Brown v. Colvin, Case No.
12-1456-SAC (D. Kan. Sept. 20, 2016), the court found that an
hourly fee of $307.64 was reasonable. In the case of
Glaze v. Colvin, Case No. 13-2129-SAC (D. Kan. July
15, 2015, Doc. 23), the court found that an hourly fee of
$293.00 was reasonable. In the case of Sharp v.
Colvin, Case No. 09-1405-SAC (D. Kan. Jan. 13, 2015),
the court found that an hourly rate of $258.63 was
reasonable. In the case of Bryant v. Colvin, Case
No. 12-4059-SAC (D. Kan. Dec. 23, 2014), the court found that
an hourly rate of $418.28 was reasonable. In the case of
Roland v. Colvin, Case No. 12-2257- SAC (D. Kan.
Dec. 23, 2014), the court found that an hourly rate of
$346.28 was reasonable. In the case of Wulf v.
Astrue, Case No. 09-1348-SAC (D. Kan. May 30, 2012, Doc.
23), the court found that an hourly fee of $321.01 was
reasonable. In the case of Vaughn v. Astrue, Case
No. 06-2213-KHV, 2008 WL 4307870 at *2 (D. Kan. Sept. 19,
2008), the court found that $344.73 was a reasonable hourly
fee. In Smith v. Astrue, Case No. 04-2197-CM, 2008
WL 833490 at *3 (D. Kan. March 26, 2008), the court approved
an hourly fee of $389.61. In summary, hourly fees ranging
from $258.63 to $432.02 have been approved in the cases cited
above. See Robbins v. Barnhart, Case No.
04-1174-MLB, 2007 WL 675654 at *2 (D. Kan. Feb. 28, 2007)(In
his brief, the Commissioner noted that, in interpreting
Gisbrecht, courts have found reasonable fee amounts
ranging from $338.29 to $606.79 per hour).
in the case of Scoonover v. Colvin, Case No.
12-1469-JAR (D. Kan. Dec. 15, 2016) 2016 WL 7242512, Judge
Robinson found an effective hourly rate of $511.32 (for 41.80
hours worked on the case by counsel) exceeded the high range
of § 406(b) fees awarded the 10th Circuit and
judges in this district. 2016 WL 7242512 at *1 and fn. 7, 8.
The court in that case reduced the rate to $400 an hour. 2015
WL 7242512 at *2.
summary, hourly fees ranging from $258.63 to $432.02 have
been approved in the cases cited above. Proposed fees
representing an effective hourly rate of $511.32 and $611
have been reduced to an amount falling within the range
noted. Consistent with Gisbrecht, this court should
not award “windfalls for lawyers” such that when
“the benefits are large in comparison the amount of
time counsel spent on the case, a downward adjustment is
similarly in order.” Gisbrecht, 535 U.S. at
808; Schoonover, 2016 WL 7242512 at *2.
case before the court, plaintiff's counsel is requesting
an award of attorney fees that would represent an effective
hourly rate of $474.78 (for 38.8 hours of work). The court in
this case finds that an hourly award of $474.78 is
unjustifiably high. The court will therefore reduce the
hourly rate to $425.00 an hour. Therefore, the court will
award fees in the amount of $16, 490.00.
THEREFORE ORDERED that the motion by plaintiff's attorney
for an award of attorney fees under 42 U.S.C. § 406(b)
(Doc. 23) is granted in part. Plaintiff's attorney is
entitled to $16, 490.00 in fees under 42 U.S.C. §
406(b). The Commissioner shall pay the fees from the amount
she is withholding from plaintiff's past due benefits.
The Commissioner shall pay the remainder of the withheld
benefits to plaintiff.
FURTHER ORDERED that plaintiff's counsel shall refund to
plaintiff $6, 250.00, which he received as fees under the
Case 2:12-cv-02652-SAC Document 26 Filed 04/05/17 Page 6 of 6
EAJA, after plaintiff's attorney receives his $16, 490.00
in attorney fees from the Commissioner.