Gerry W. v. O'Malley

Background

Gerry W. sought judicial review of a decision denying his application for Disability Insurance Benefits. On July 2, 2024, the court remanded the case to the Acting Commissioner of Social Security under sentence four of 42 U.S.C. § 405(g). After the remand, Gerry W. received an award of past-due and future disability benefits.

The order explains that the complaint originally named Martin O’Malley. Leland Dudek became Acting Commissioner on February 19, 2025, and the court stated that Dudek should be substituted as the defendant under Federal Rule of Civil Procedure 25(d).

The Social Security Administration issued a notice of award on March 8, 2025, showing $165,290 in past-due benefits. It withheld 25 percent, or $41,322.50, for legal expenses. Gerry W.’s counsel moved for $32,122.50 in fees under 42 U.S.C. § 406(b), based on a contingency-fee agreement. Counsel also planned to request $9,200 in fees for work at the administrative level under § 406(a).

The court had previously denied Gerry W.’s request for $5,528.40 in fees and $402 in costs under the Equal Access to Justice Act because that request was untimely.

Legal standard

Under 42 U.S.C. § 406(b)(1), a court may approve a reasonable fee for an attorney who represented a claimant in court, up to 25 percent of the claimant’s past-due benefits. The court must independently determine whether a contingency-fee amount is reasonable. The court may consider the time spent, the attorney’s usual billing rate, any delay caused by counsel, and the quality and result of the representation.

The court also explained that when both Equal Access to Justice Act fees and § 406(b) fees are awarded, the attorney must refund the smaller fee to the claimant. Here, however, the Equal Access to Justice Act request had been denied as untimely.

Court’s analysis

Counsel represented that the work included at least 21.4 attorney hours and possibly 5.1 paralegal hours. After accounting for the paralegal time, counsel’s requested attorney rate was $1,477.22 per hour. The court found that rate reasonable despite recognizing that it was at the high end of rates approved in the district. The court relied on the contested nature of the case, the benefits obtained, the absence of significant counsel-caused delay apart from the untimely Equal Access to Justice Act motion, and the reasonable amount of time spent.

The court deducted 0.6 attorney hours spent on the untimely Equal Access to Justice Act motion. Using 20.8 hours, the court calculated a fee of $30,726.17. It then deducted $5,528.40, the amount sought in the untimely Equal Access to Justice Act motion, because the court found it unreasonable for counsel to receive a windfall from failing to timely seek those fees.

Disposition

The court ordered that Gerry W.’s motion for attorney’s fees under Social Security Act § 206(b)(1) was granted in part and denied in part. It awarded counsel $25,197.77 in reasonable attorney’s fees under § 406(b)(1) and ordered judgment entered accordingly.