United States District Court, D. New Hampshire
Dennis M. Mounce
Carolyn W. Colvin, Acting Commissioner, U.S. Social Security Administration Opinion No. 2016 DNH 145
Barbadoro United States District Judge
Elizabeth R. Jones seeks $37, 953.63 in attorney’s fees
for her representation of Social Security claimant Dennis
Mounce. She argues that a fee agreement she executed with
Mounce in October 2011 entitles her to fees. In my previous
Order, I noted that neither Jones nor the Social Security
Administration (SSA) had adequately briefed whether
Jones’s fee agreement addressed work she performed
before this court. I therefore directed the parties to file
additional briefs addressing two questions: (1) whether Jones
and Mounce entered into any enforceable fee agreement
entitling Jones to compensation under 42 U.S.C. §
406(b), and (2) if not, what standard should govern an award
of fees to Jones. Having reviewed the parties’
responses, I now find that Jones’s fee agreement does
not authorize her to receive a fee award under § 406(b)
but nonetheless apply the principles of Gisbrecht v.
Barnhart, 535 U.S. 789 (2002) to award Jones $21, 900 in
Does the Fee Agreement Authorize a Fee Award Pursuant to
seeks fees under 42 U.S.C. § 406(b), a statute that
allows attorneys to recover a portion of a claimant’s
past-due benefits as compensation for representing the
claimant in federal court. Courts may only award fees for
work done before the court and may not grant fees for work
done before the SSA. See 42 U.S.C. § 406(b)(1)(A);
Clark v. Astrue, 529 F.3d 1211, 1215 (9th Cir.
2008). Where, as is often the case, attorneys enter into fee
agreements with claimants, courts generally defer to these
agreements, so long as they are “reasonable.” See
Gisbrecht, 535 U.S. at 807-08.
argues that her October 2011 fee agreement entitles her to
fees under Section 406(b). This argument is unpersuasive because
the agreement does not reference fees under Section 406(b).
with the agreement’s language. The agreement contains
three main fee provisions: a first “tier”
provision, a second “tier” provision, and a
clause discussing assignment of fees under the Equal Access
to Justice Act (EAJA). The first tier states that if Jones
wins “at any administrative level” through the
first ALJ decision after the date of the agreement, Jones
receives a fee of either 25% of Mounce’s past-due
benefits or $6, 000, whichever is less. Doc. No. 14-2 at 12
(emphasis added). The second tier states that if the first
ALJ decision is a denial, and Jones files an appeal for
Mounce and wins, Jones “will ask SSA” to approve
a fee no greater than 25% of Mounce’s back benefits.
Id. (emphasis added). The second tier also provides
that Jones’s total fee will be “no more than the
limit set by 42 U.S.C. § 406(a)(2)(A).”
Id. (emphasis added). Finally, the EAJA clause
states that “[i]f a court awards [Mounce] a fee under
the Equal Access to Justice Act, [Mounce] assigns them to
only the EAJA clause mentions compensation for work done
before the court. The first tier prescribes compensation for
Jones’s representation at the “administrative
level, ” not the court. The second tier notes that
Jones will ask the “SSA” - not the court - to
approve her fee, and makes clear that Jones’s fee may
not exceed the limit set by Section 406(a) - which governs
representation before the SSA - not 406(b) - which governs
representation in court. Indeed, the agreement makes no
reference to Section 406(b) at all. Finally, although the
EAJA clause allows fees for court work, the EAJA provides a
right to fees that is distinct from the right recognized in
Section 406(b). As such, the language of the agreement
provides no basis for awarding fees under Section 406(b).
What Standard Should Guide an Award of Fees Here?
without an enforceable fee agreement, Jones may still recover
fees for her work in this court. See 42 U.S.C. §
406(b)(1)(A) (“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 . . . .”); Greenberg v.
Colvin, 63 F.Supp.3d 37, 50 (D.D.C. 2014) (“The
statute . . . does not demand a contingent agreement . . .
courts have held that fees under § 406(b) may be
available where there is no contingency arrangement between
the claimant and his counsel.”); Sanfilippo v.
Comm'r of Soc. Sec., No. 8:04-CV-2079-T-27MSS, 2008
WL 1957836, at *3 (M.D. Fla. May 5, 2008) (“This Court
does not agree that Grisbrecht [sic] prohibits a fee award
where there is not a contingency fee agreement.”). The
question is therefore what standard I should apply to
Jones’s fee award.
parties describe two potential approaches. One is the
lodestar method, whereby courts multiply the number of hours
“reasonably devoted to each case” by a
“reasonable hourly fee.” Gisbrecht, 535 U.S. at
797-98. The other calls for me to apply a
“reasonableness” test by employing the principles
described by the Supreme Court in Gisbrecht.
a blended approach. In Gisbrecht, the Supreme Court
instructed courts to essentially defer to fee agreements
negotiated by attorneys and claimants, so long as they are
“reasonable.” See 535 U.S. at 807-808. In this
case, however, Jones has no enforceable fee agreement that
would be entitled to deference. Nevertheless, Gisbrecht still
provides helpful guidance by identifying a set of factors
courts should review to determine a reasonable fee. See
Id. at 808. These factors include, as the SSA notes,
“(1) the character of representation; (2) the results
achieved; (3) whether the attorney is responsible for a delay
and will profit from an accumulation of benefits during the
pendency of the case in court; and (4) whether the benefits
are large in comparison to the amount of time counsel spent
on the case.” Doc. No. 20 at 2; see Gisbrecht, 535 U.S.
begin with Jones’s lodestar as a starting point and
then adjust her fee by applying Gisbrecht’s factors.
See Bentley v. Comm'r of Soc. Sec., 524
F.Supp.2d 921, 925 (W.D. Mich. 2007) (“In the absence
of a contingent fee agreement, the most useful starting point
for determining a reasonable fee is the
‘lodestar’. . . .”). Here, Jones spent
43.80 hours on Mounce’s court case, at a rate of $250
an hour. Doc. No. 14-2 at 70-72. A lodestar approach -
multiplying hours by hourly rate - would therefore yield a
fee of $10, 950.
$10, 950 as a starting point, I now apply the Gisbrecht
factors, several of which support increasing Jones’s
fee. For starters, her work before this court took
considerable skill. Jones had to establish Mounce’s
past disability despite multiple past denials, a fact that
required her to present more than boilerplate arguments.
Cf. Joslyn v. Barnhart, 389 F.Supp.2d 454, 456-57
(W.D.N.Y. 2005) (giving weight to representation that shows
“effort expended by the attorney demonstrated through
pleadings which were not boilerplate and through arguments
which involved both real issues of material fact and required
legal research.”). Second, Jones’s work was
effective. She won Mounce nearly seven years of back
benefits, worth $151, 814.50. Doc. No. 14 at 2. She did this,
moreover, while bearing a significant risk that she would not
be compensated at all for her work, since Mounce paid no fee
up-front. Cf. Bentley, 524 F.Supp.2d at 924 (noting
Congress’s concern in enacting Section 406(b) that
attorneys taking Social Security cases risked
“nonpayment of appropriate fees”).
in addition to securing back benefits, Jones also won ongoing
disability payments for Mounce, a significant future benefit.
Cf. Crawford v. Astrue,586 F.3d 1142, 1152 (9th
Cir. 2009) (en banc) (highlighting, as a reason to approve a
high attorney fee, the fact that “attorneys will
receive no percentage of the substantial future benefits paid
to the claimants”). Fourth, there is no indication that
Jones engaged in ...