Bollenbacher v. Secretary of Health & Human Services

737 F. Supp. 874, 1990 U.S. Dist. LEXIS 6185, 1990 WL 68660
CourtDistrict Court, W.D. Pennsylvania
DecidedMay 18, 1990
DocketCiv. A. No. 84-138
StatusPublished
Cited by1 cases

This text of 737 F. Supp. 874 (Bollenbacher v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bollenbacher v. Secretary of Health & Human Services, 737 F. Supp. 874, 1990 U.S. Dist. LEXIS 6185, 1990 WL 68660 (W.D. Pa. 1990).

Opinion

[875]*875OPINION

COHILL, Chief Judge.

Presently before the Court is a motion for attorney’s fees originally filed November 7, 1989 in the above captioned case.1 Initially, the attorney attached to his motion itemizations not only for hours spent litigating the case before the district court, but also time spent before the Social Security Administration. See 42 U.S.C. § 406(a). Therefore, on November 21, 1989 the Court ordered the attorney to specify only the hours spent in this Court. In belated response, another lawyer in the attorney’s office submitted, by letter dated April 2, 1990, the itemization of hours attributable to district court proceedings.

The attorney had included with his original motion a Notice of Change in Benefits addressed to the plaintiff, John G. Bollen-bacher, from the Office of Disability Operations. The letter informed Mr. Bollenbacher that the Social Security Administration had withheld 25 per cent of his past due benefits to pay an approved attorney’s fee. The letter also stated: “When the amount of the fee is decided, we will let you and the lawyer know how much of [the $6,847 withheld] will be used to pay the fee. We will send the remainder to [the plaintiff].”

On September 14, 1989 the Social Security Administration notified the attorney that pursuant to 42 U.S.C. § 406(a), he was authorized to charge Mr. Bollenbacher the sum of $4,250 for services rendered before the Social Security Administration. For services rendered in court, the attorney has now petitioned this Court for $2,597, the total amount remaining with the Social Security Administration.

Also attached to the attorney’s motion is the following statement, signed by plaintiff, and dated August 27, 1988:

I, John Bollenbacher, hereby confirm my understanding with [my attorney] that his fee will be paid in the amount of 25% of retroactive benefits up to the date of the award in reference to my Social Security Disability case.

The April 2, 1990 letter, which itemized hours, specified that the attorney had spent 1872 hours litigating the case in this Court. Among the itemizations is “Preparation of the Complaint and trip to Pgh. to file complaint,” for which the attorney has designated 5 hours.

[876]*876Despite two opportunities to do so, first with his initial fee petition, and next in response to our request for appropriate itemization, the attorney still has not provided the Court with the customary sworn declaration or affidavit. See Tomallo v. Heckler, 623 F.Supp. 1046, 1049 (W.D.Pa.1985) (Cohill, C.J.). Among the facts we would expect to find in such a declaration are the following:

1. The dates the attorney’s services to plaintiff in the district court (and/or court of appeals) began and ended.

2. A list of the services performed and the amount of time spent on each type of service. This list should include only court related services.

3. The hourly rate the attorney customarily charges for social security appeals.

4. A description of the attorney’s qualifications, including length of time in practice and experience in litigating social security appeals.

5. The total amount of past due benefits that have been withheld and the amount of any fee awarded by the Secretary to be deducted from the past due benefits.

6. A statement showing that the attorney sent a copy of the fee request and supporting declaration to plaintiff. See 20 C.F.R. § 404.1728(a); see also Tomallo, 623 F.Supp. at 1049.

Pursuant to 42 U.S.C. § 406(b)(1), the Social Security Act authorizes a court to award reasonable attorney’s fees for claims “[w]henever a court renders a judgment favorable to a claimant ... represented before the court by an attorney ... for such representation.” Guido v. Schweiker, 775 F.2d 107, 108 (3rd Cir.1985). The statute also directs the Secretary to fix a reasonable fee when the Secretary makes a determination favorable to the claimant. Id.

“The total amount awarded by both the court and the Secretary may not exceed 25 per cent of the claimant’s recovery of past due benefits.” Id. (emphasis added). Concerned that some attorneys were charging excessive fees prosecuting social security benefit claims, Congress set the 25 per cent maximum fee in the Social Security Amendments of 1965. 42 U.S.C. § 406(b)(1); Coup v. Heckler, 834 F.2d 313, 320 (3rd Cir.1987).

We wish to emphasize that 25 per cent of the total of past due benefits awarded to the plaintiff is the maximum fee permitted by statute, see Lewis v. Sec’y of Health and Human Services, 707 F.2d 246, 248 (6th Cir.1983); it is not a required fee or the only fee that may be awarded.

A contract between the plaintiff and the attorney for a 25 per cent contingency fee certainly does not preclude the court’s review of the propriety of awarding the full contract amount. Id. Moreover, the court need not await plaintiff’s objections to the amount of the fee. Id. The Social Security fee provision is a “statutory interference with the attorney client contractual relationship which would otherwise be determined by the marketplace for legal services.” Coup, 834 F.2d at 324.

Considering the humanitarian policy of the Social Security program to benefit the disabled, the Secretary maintains “an interest in the fair distribution of monies withheld for attorney’s fees.” Id. The Secretary assumes the responsibility to determine the appropriate fee before the agency. However, partly because that determination is judicially unreviewable, the district court retains authority to set fees in the trial and appellate courts. Guido, 775 F.2d at 110; see also Matter v. Bowen, 675 F.Supp. 212, 214 (M.D.Pa.1987) (district courts have an independent duty to scrutinize fee petitions (citing Tomallo v. Heckler, 623 F.Supp. 1046 (W.D.Pa.1985)).

Not even at the district court level, however, does the Secretary lose interest in the amount of the fee awarded. Therefore, we may, and indeed will, consider the objections of the Secretary, represented in this Court by the United States Attorney, to the amount claimed in the fee petition.

Consistent with this Court’s directive in Tomallo, the United States Attorney, on behalf of the Secretary, responded to the fee petition in the instant case by submit[877]*877ting countervailing evidence to show that this attorney’s fee should be reduced. Tomallo, 623 F.Supp. at 1049-50.

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Bluebook (online)
737 F. Supp. 874, 1990 U.S. Dist. LEXIS 6185, 1990 WL 68660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bollenbacher-v-secretary-of-health-human-services-pawd-1990.