UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEORGE STANLEY-LEE SHONG,

Plaintiff,

CASE NO. 14-CV-14415

v. HONORABLE GEORGE CARAM STEEH

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

 /

ORDER GRANTING PLAINTIFF’S COUNSEL’S MOTION FOR ATTORNEY

FEES PURSUANT TO 42 U.S.C. § 406(B) (DOC. 17) AND REQUIRING

PLAINTIFF’S COUNSEL TO REFUND TO PLAINTIFF THE PREVIOUS FEE

AWARDED PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

Now before the Court is Plaintiff’s counsel’s motion for attorney fees, in the

amount of $16,428.75, pursuant to 42 U.S.C. § 406(b). (Doc. 17). Plaintiff has not filed

an objection with the Court. The Commissioner of Social Security has no objection to

the award of the full amount, provided that Plaintiff’s counsel refunds the $5,000 that he

has received pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, to

Plaintiff. Given that there are no objections to the relief requested and given that the

motion is fully briefed, the Court will dispense with oral argument pursuant to Local Rule

7.1(f)(2). For the reasons explained below, the Court will grant Plaintiff’s counsel’s

motion, with the Commissioner’s condition.

I. Background

Plaintiff filed the instant action to appeal the Commissioner of Social Security’s

decision denying his application for disability benefits. After Plaintiff filed a motion for

-1-

2:14-cv-14415-GCS-RSW Doc # 19 Filed 08/02/16 Pg 1 of 6 Pg ID 467
summary judgment, the parties stipulated that the Court should remand the case to the

Commissioner for further administrative action. (Doc. 12). Accordingly, the Court

remanded the case to the Commissioner. (Doc. 13). On remand, the Commissioner

awarded benefits to Plaintiff. According to the Notice of Award, the Commissioner

withheld $16,428.75, which represents twenty-five percent of the total award. (Doc. 17-

2).

Attached to the motion now before the Court is a copy of the Fee Agreement

executed by Plaintiff and Plaintiff’s counsel. (Doc. 17-3). The Fee Agreement provides

that Plaintiff’s “attorney shall charge and receive . . . an amount equal to twenty-five

percent (25%) of the past-due benefits that are awarded to [Plaintiff’s] family and

[Plaintiff] in the event [the] case is won.” (Id.). It further provides that Plaintiff “will not

be charged a fee if [Plaintiff] do[es] not receive past-due benefits.” (Id.). Plaintiff’s

counsel represents that he sent notice to Plaintiff, on or before July 1, 2016, informing

Plaintiff that he has a right to object to the proposed award of $16,428.75,

notwithstanding the Fee Agreement. (Doc. 17 at 7). As noted above, the Court has not

received an objection from Plaintiff.

Plaintiff’s counsel has also filed an affidavit in support of the instant motion. 

(Doc. 17-5). In the affidavit, counsel details the forty-five hours that he states that he

spent working on the instant case, during the proceedings in this Court and at the

administrative level. (See id. ¶ 7). Plaintiff’s counsel states that for his non-contingencyfee cases, his usual hourly rate is $240 per hour. (Id. ¶ 9).

The Court has previously awarded attorney fees to Plaintiff’s counsel in the

amount of $5,000. (Doc. 16). The Court issued this award pursuant to the EAJA and

-2-

2:14-cv-14415-GCS-RSW Doc # 19 Filed 08/02/16 Pg 2 of 6 Pg ID 468
the parties’ joint stipulation. (See id.). As noted above, the Commissioner believes that

this $5,000 amount should be refunded to Plaintiff, as a condition of Plaintiff’s counsel’s

receipt of the now-requested $16,428.75. (See Doc. 18). According to the

Commissioner, Plaintiff’s counsel agrees to this condition. (Id.).

II. Law

When a claimant is successful on his disability-benefits appeal, “the court may

determine and allow as part of its judgment a reasonable fee for [the claimant’s

attorney], not in excess of 25 percent of the total of the past-due benefits to which the

claimant is entitled by reason of such judgment.” 42 U.S.C. § 406(b). As the Sixth

Circuit has explained, an agreement for a twenty-five percent contingency fee is

presumptively reasonable under section 406(b) unless (1) counsel engaged in improper

conduct or rendered ineffective assistance or (2) counsel would “enjoy a windfall

because of either an inordinately large benefit award or from minimal effort expended.” 

Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 420-21 (6th Cir. 1990)

(quoting Rodriguez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989)) (emphasis removed)

(internal quotation marks omitted). In assessing whether an attorney would enjoy a

windfall from an apparently large contingency-fee award, a court must take into account

the fact that the attorney probably does not win every contingency-fee case he or she

takes. See id. at 421. For this reason, the Sixth Circuit has held that “a windfall can

never occur when . . . the hypothetical hourly rate determined by dividing the number of

hours worked for the claimant into the amount of the fee permitted under the contract is

less than twice the standard rate for such work in the relevant market.” Id. at 422;

accord Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309 (6th Cir. 2014).

-3-

2:14-cv-14415-GCS-RSW Doc # 19 Filed 08/02/16 Pg 3 of 6 Pg ID 469
The EAJA provides an alternative avenue by which a claimant’s attorney can

receive fees. A court can order awards under both the EAJA and § 406(b), but the

claimant’s attorney must refund the smaller of the two awards to the claimant. See

Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002)

III. Application

The Court, after a review of Plaintiff’s counsel’s previous filings in this case, finds

no evidence of improper conduct or deficient performance on the part of Plaintiff’s

counsel. This finding is bolstered by the lack of objection by Plaintiff or the

Commissioner to the proposed fee award.

The Court also finds that the proposed fee award would not provide a windfall to

Plaintiff’s counsel. The Court credits Plaintiff’s representation that he worked forty-five

hours on this case, and the Court finds this to be a reasonable amount of time, in light of

the proceedings at both the administrative and district-court levels. Given that Plaintiff

worked forty-five hours on this case, the proposed contingency-fee award represents an

effective hourly rate of approximately $365. This hourly rate is reasonable and does not

represent a windfall. See Ballatore v. Comm’r of Soc. Sec., No. 11-15335, 2015 WL

5830836, at *10 (E.D. Mich. Aug. 5, 2015) (unpublished) (collecting cases from this

district and from other districts in which fee awards of $600 or more were approved). 

This amount is only about fifty percent more than Plaintiff’s counsel’s non-contingent

hourly rate.

The Michigan State Bar’s 2014 study on attorney billing rates confirms the

reasonableness of the $365 effective hourly rate. See State Bar of Michigan,

Economics of Law and Practice in Michigan (2014), available at

-4-

2:14-cv-14415-GCS-RSW Doc # 19 Filed 08/02/16 Pg 4 of 6 Pg ID 470
https://www.michbar.org/file/pmrc/articles/0000151.pdf. Other judges in this district

have relied on this study in assessing the reasonableness of attorney-fee awards, and

this Court takes judicial notice of it. See Ballatore, 2015 WL 5830836, at *9; Drenning v.

Comm’r of Soc. Sec., No. 12-13470, 2014 WL 4705113, at *4 (E.D. Mich. Sep. 21,

2014) (unpublished). The study shows that the median hourly rate for an attorney in

Jackson, where Plaintiff’s counsel is based, is $185. Moreover, the study shows that

median hourly rate for an attorney specializing in public-benefits law is $225. The

effective hourly rate of $365 is less than twice of either amount. Thus, the proposed

attorney-fee award would not present a windfall to Plaintiff’s counsel. Again, this finding

is confirmed by the lack of objection from either Plaintiff or the Commissioner.

The proposed attorney-fee award of $16,428.75 does not exceed twenty-five

percent of the past-due benefits awarded to Plaintiff by the Commissioner. Because the

Court finds no evidence that counsel has acted improperly or that counsel would receive

a windfall from the proposed award, the Court finds that the proposed award is

presumptively reasonable. No party has offered evidence to rebut this presumption of

reasonableness, and therefore the Court concludes that the proposed award is

reasonable. 

Given that both Plaintiff’s counsel and the Commissioner agree that the $5,000

awarded to Plaintiff’s counsel under the EAJA should be refunded to Plaintiff, the Court

finds that the $5,000 EAJA award should be refunded to Plaintiff as a condition of

Plaintiff’s counsel’s receipt of the $16,428.75.

-5-

2:14-cv-14415-GCS-RSW Doc # 19 Filed 08/02/16 Pg 5 of 6 Pg ID 471
IV. Conclusion

Therefore, IT IS ORDERED that Plaintiff’s counsel’s motion for attorney fees

(Doc. 17) is GRANTED. The Commissioner SHALL pay Plaintiff’s counsel $16,428.75. 

This amount represents twenty-five percent (25%) of the past-due benefits that were

awarded to Plaintiff following the remand of the instant case to the Commissioner. IT IS

FURTHER ORDERED that Plaintiff’s counsel SHALL refund the $5,000 EAJA award to

Plaintiff.

IT IS SO ORDERED.

Dated: August 2, 2016

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 2, 2016, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

-6-

2:14-cv-14415-GCS-RSW Doc # 19 Filed 08/02/16 Pg 6 of 6 Pg ID 472