C.D. v. Berryhill

Background

C.D.’s case concerned an application for disability insurance benefits under Title II of the Social Security Act. On cross-motions for summary judgment, the court previously granted in part C.D.’s motion, remanded the case for further proceedings, and entered judgment.

The parties had stipulated to $6,500 in attorney’s fees under the Equal Access to Justice Act. The court later awarded that amount after requiring additional information about the work performed and the time billed.

On remand, the Social Security Administration found C.D. disabled as of August 1, 2010. It issued notices stating that C.D. was entitled to past-due benefits and past-due auxiliary benefits for her child. The agency withheld 25% of those benefits—$44,162.50 from C.D.’s benefits and $22,071.25 from the auxiliary benefits—for possible representative fees.

Fee request

Gerrard moved under 42 U.S.C. § 406(b) for $66,233.75, representing 25% of C.D.’s past-due benefits and auxiliary past-due benefits. The submitted fee contract stated that C.D. agreed to pay 25% of the past-due benefits awarded to her family. The contract was dated October 2, 2018, after the appeal had been filed, after the substantive work had been completed, and after the court had issued its summary judgment ruling and entered judgment. The copy submitted to the court was signed by C.D. but not by Gerrard.

The court also noted that Gerrard had not submitted a certificate showing that she served either fee motion on C.D. Gerrard stated in her reply that C.D. had received email copies, but the record did not show C.D.’s position or whether she had been told she could respond. The Commissioner took no position and responded in a role resembling that of a trustee for C.D.

Court’s analysis

Section 406(b) allows a court to approve a reasonable attorney’s fee of no more than 25% of the past-due benefits awarded because of a favorable judgment. The court explained that contingent-fee agreements are the primary way fees are set in these cases, but the court must independently review them for reasonableness. The attorney seeking the fee must show that it is reasonable for the services provided.

The court questioned whether the submitted agreement was properly formed and documented. It also found that Gerrard’s representation was below the standard expected before the court. The court referred to its earlier description of C.D.’s briefs as confusing, disorganized, and at times incoherent, with arguments that were difficult to understand and did little to advance C.D.’s case.

The court also questioned Gerrard’s time records. Gerrard reported approximately 57 hours in one submission, 60.2 hours in another, and 61.7 hours in the amended motion. The records changed the amount of time attributed to interviewing C.D. and changed the description of other work. The amended records also included 4.5 hours for preparing an Equal Access to Justice Act application and response, listed as occurring in December 2022 even though the court assumed the work referred to earlier fee applications.

Even accepting all 61.7 claimed hours, the court found that a 25% fee would produce a de facto hourly rate of $1,073.48 based on $264,935 in past-due benefits. Considering the quality of the representation, the apparent failure to enter a proper contingency-fee agreement at the outset, and the time-record concerns, the court concluded that the requested fee would be an unreasonable windfall.

Ruling

The court granted in part Gerrard’s amended motion for fees under 42 U.S.C. § 406(b). It awarded Gerrard $12,163.59 and ordered her to refund C.D. the $6,500 in Equal Access to Justice Act fees previously awarded.