IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

HERBERT H. HENDERSON,

Plaintiff,

v. No: 3:04cv19/MCR/MD

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant.

_______________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is a petition for authorization of attorney fees (doc. 35), to

which defendant has responded (36). Plaintiff has also filed a reply (doc. 38).

Plaintiff’s counsel seeks compensation pursuant to 42 U.S.C. § 406(b) for time spent

in this court successfully obtaining benefits for his client. He seeks a total of $5,925

under a contingent fee contract with his client. He has filed an accounting of time

spent that shows a total of 14 hours as the total time spent representing plaintiff in

this court.

Plaintiff’s counsel concedes that he is entitled to be awarded fees only for the

time spent in the judicial portion of the case, and he also concedes that he has

already received an EAJA award of $1,750 (doc. 33). As the result of counsel’s

efforts in this case, plaintiff was awarded back benefits, and the Commissioner has

withheld $12,975 from the amount owed for payment of fees pursuant to § 406(b).

Of that amount, the Commissioner has awarded counsel $5.300 (less a $75 user fee)

for representation of the plaintiff at the administrative level. 

The contingent fee contract at issue here provides that plaintiff shall pay her

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attorney 25% of the past benefits recovered. In Gisbrecht v. Barnhart, 535 U.S. 789,

122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) the Supreme Court held that, contrary to prior

Circuit Court decisions, including Kay v. Apfel, 176 F.3d 1322 (11th Cir. 1999), the

lodestar approach is not the appropriate standard for awarding fees in cases of this

nature. Rather, this court must independently assess the reasonableness of the fee

contract, giving significant weight to its terms, but further considering such

concerns as (1) whether the attorney was responsible for the delay (thereby

increasing the amount of past-due benefits), and (2) whether the benefits are large

in relation to the time spent on the case, thereby granting counsel an undeserved

windfall. 535 U.S. at 808, 122 S.Ct. at 1828. Case law provides little guidance in

determining what constitutes the type of windfall about which the Gisbrecht court

expressed concern, but it approvingly cited to Rodriquez v. Bowen, 865 F.2d 739 (6th

Cir. 1989), which disapproved the award of a full 25% fee in a case submitted to the

court “on boilerplate pleadings, in which no issues of material fact are present and

where no legal research is apparent.” 865 F.2d at 739. On the other hand, the full

amount may be appropriate “for extensive effort on the part of counsel who have

overcome legal and factual obstacles to the enhancement of the benefits awarded

his clients.” Id. 

Cases decided since Gisbrecht have generally been deferential to the terms

of contingent fee contracts, accepting de facto hourly rates that exceed those for

non-contingent fee cases. See, e.g., Hearn v. Barnhart, 2003 WL 21186035 (N.D. Cal.

2003) (awarding de facto hourly rate of $450); Boyd v. Barnhart, 2002 WL 32096590

(E.D.N.Y. 2002) (approving $455); Dodson v. Barnhart, 2002 WL 31927589 (W.D. Va.

2002) (approving $694); Coppett v. Barnhart, 242 F. Supp. 2d 1380 (S.D. Ga.)

(approving $350).

Here plaintiff and his attorney agreed to a reasonable fee of 25% of past

benefits recovered (doc. 35-1). The Commissioner withheld $12,975 from the amount

awarded to plaintiff, calculated as 25% of the award. Plaintiff’s counsel has spent

14 hours representing plaintiff in this court. Thus, if he is awarded the full 25%

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1

 As noted, plaintiff’s counsel has already received $1750 under the EAJA. His request for $5,925 is

based on his erroneous assumption that the award of this amount plus what he has already received under the

EAJA, plus what he was awarded for his administrative work, will net him the entire 25%. Actually, as the

defendant notes, 42 U.S.C. § 406(b) provides that he should be awarded $7,675 (the amount this court finds

reasonable) and be required to refund the EAJA award to his client. For that reason, the court’s

recommendation is that the fee be awarded as contemplated by the statute. The end result is the same.

Counsel’s total fee will be 25% of the back benefit award as his contract with the plaintiff provides. 

contingency, his effective hourly rate for his non-administrative time will be $548.21.

Counsel did not rely on boilerplate pleadings, but succeeded in convincing the court

to reverse the decision of the Commissioner. Clearly this involved an extensive

effort to overcome legal and factual obstacles to the enhancement of the benefits

awarded his client. Plaintiff’s counsel has been handling this case since January,

2004, and represented the plaintiff with the expectation that he would receive

nothing for his efforts if he was not successful. It does not appear that counsel was

in any way responsible for any delay in the proceedings. The undersigned therefore

finds that the fee requested,1 being the fee contemplated in the fee agreement

between the plaintiff and her attorney, is reasonable.

Accordingly, it is respectfully RECOMMENDED that the petition for

authorization of attorney fees (doc. 35) be granted as modified herein (see fn. 1), and

that the court

a. Order the Commissioner to disburse the sum of $7,675.00 to plaintiff’s

counsel, Gilbert B. Laden, Esq., as reasonable attorney fees under Title

42 U.S.C. § 406(b), and

b. Order counsel to refund to plaintiff the $1,750.00 previously awarded

him by this court under the EAJA.

At Pensacola, Florida, this 26

th day of April, 2006 .

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy hereof. Any different time that may appear

on the electronic docket is for the court’s internal use only, and does not control.

A copy of any objections shall be served upon any other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636;

United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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