UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dennis M. Mounce
v. Case No. 10-cv-560-PB
Opinion No. 2016 DNH 145
Carolyn W. Colvin,
Acting Commissioner,
U.S. Social Security
Administration
O R D E R
Attorney 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 fees.1
A. Does the Fee Agreement Authorize a Fee Award Pursuant
to §406(b)?
Jones 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.
Jones argues that her October 2011 fee agreement entitles
her to fees under Section 406(b).2 This argument is unpersuasive
1 The facts, procedural history, and legal framework of this case
are set out in my previous order (Doc. No. 18), and I therefore
discuss only those facts that are relevant to resolving the
present motion.
2 Jones signed three separate fee agreements with Mounce, but
Jones only argues that the October 2011 agreement entitles her
to fees here. See generally Doc. Nos. 19; 18 at 2-5 (describing
the three agreements); 17 at 1 (conceding that the first
agreement “specifically limited the time period it covered” and
ended after the ALJ hearing in June 2010).
2
because the agreement does not reference fees under Section
406(b).
I begin 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 [Jones].”
Id.
Thus, 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”
3
– 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).3 As such, the language of the agreement provides no
basis for awarding fees under Section 406(b).
B. What Standard Should Guide an Award of Fees Here?
Even 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
3 In fact, Jones has already received an EAJA fee from Mounce and
has agreed to remit that sum to Mounce if her request for
attorney’s fees is granted here. Doc. No. 14 at 3; see
Gisbrecht,
535 U.S. at 796 (noting that attorneys “must refund
to the claimant the amount of the smaller fee”) (internal
alterations and quotations omitted).
4
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.
The 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.
I adopt 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
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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. at 808.
Thus, I 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 $10,950.4
Using $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
4 In her brief, Jones states: “[s]hould the court find that the
fee agreement is unenforceable under § 406(b) then a more
complete list of total hours spent, to include paralegal time,
will be submitted.” Doc. No. 19 at 9. I see no need to have
Jones submit further documentation about her hours because the
total fee I award – twice the lodestar – encompasses both the
time she spent on the case and any reasonable paralegal hours.
As such, I decline to give the parties further time to submit
even more documentation above what has already been submitted.
6
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”).
Third, 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 delay tactics in order to increase her total fee. See
id. at
1148 (condemning “dilatory conduct” by attorneys).
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Given these factors, an award of $21,900, or twice the
lodestar of $10,950, is warranted. This fee represents a rate
of $500 an hour, and is significantly lower than the $37,953.63
Jones seeks, but significantly higher than her normal hourly
rate. This award is consistent with fees endorsed by other
courts.5
CONCLUSION
I grant Jones’s motion (Doc. No. 14) and award attorney’s
fees in the amount of $21,900 (Twenty-One Thousand Nine Hundred
Dollars). I direct Jones to remit to Mounce her prior EAJA fee
of $5,875.20. See 28 U.S.C. § 2412 note, Act of Aug. 5, 1985,
Pub. L. No. 99–80, § 3,
99 Stat. 183, 186; Gisbrecht,
535 U.S.
at 796 (requiring attorneys to “refun[d] to the claimant the
5 On the higher side, in Ezekiel v. Astrue, Judge Hornby reduced
a fee request from $6,426 to $3,675, which represented an hourly
rate of $1,225, or three times the attorney’s lodestar. See
853
F. Supp. 2d 177, 178, 181 (D. Me. 2012). On the lower side, in
Bentley, Judge Bell reduced a fee award to $4,440, which
represented exactly the lodestar rate of $200 an hour.
524 F.
Supp. 2d at 926. Somewhere in the middle, in Moriarty v.
Astrue, Judge McAuliffe upheld a fee request of $19,438.60 for
44.35 hours of work, or $438 an hour, noting that the request
was “entirely reasonable” given that it was less than twice the
lodestar, based on the attorney’s hourly rate of $250. See
2010
DNH 055, 4-6. Jones’s fee falls well within this range.
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amount of the smaller fee.”) (alteration in original).6
SO ORDERED.
/s/ Paul Barbadoro
Paul Barbadoro
United States District Judge
August 23, 2016
cc: Elizabeth R. Jones, Esq.
T. David Plourde, Esq.
6 Legislation enacted in 1985 states:
Section 206(b) of the Social Security Act (42 U.S.C.
406(b)(1)) shall not prevent an award of fees and other
expenses under section 2412(d) of title 28, United States
Code [the EAJA]. Section 206(b)(2) of the Social Security
Act shall not apply with respect to any such award but only
if, where the claimant's attorney receives fees for the
same work under both section 206(b) of that Act and section
2412(d) of title 28, United States Code, the claimant's
attorney refunds to the claimant the amount of the smaller
fee.
Act of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 183
(published in the notes following
28 U.S.C. § 2412) (“Public Law
No. 99–80”).
9
