Opinion
Civil Action No. 96-1171-P-S.
November 30, 2000.
JUDGMENT
In accordance with the Order entered this date, it is hereby ORDERED, ADJUDGED, and DECREED that plaintiff's counsel be awarded a reasonable attorney's fee under 42 U.S.C. § 406 (b) in the amount of $2,567.57.
ORDER MODIFYING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B), and dated August 29, 2000 (doc. 27), is due to be adopted as modified as the opinion of this court. The Magistrate Judge recommended that plaintiff's counsel, petitioner, be awarded an attorney's fee award of $2,567.57. Id.
The modification to the Report and recommendation is as follows:
1) At page 6, ¶(k), last line, the adjustment factor of".1" is a typographical error and is replaced with 1.1.
The typographical nature of the error is apparent in that the overall 2.1 adjustment in the award is mathematically incorrect based on the erroneous entry. This court conferred with the Magistrate Judge regarding the entry and confirmed that the intended entry is 1.1 as modified herein. Because the modification is typographical and not mathematical, and the overall 2.1 adjustment to the award remains intact, the amount of the attorney's fee awarded need not be altered. The court notes that counsel has not objected specifically to the individual quantum adjustments as set out by the Magistrate Judge, but to the overall amount of the award.
This court also writes to petitioner's objections to the Report and Recommendation.
On January 18, 2000, plaintiff was awarded retroactive social security disability benefits in the amount of $57,669.50, with an entitlement to receive a monthly check in the amount of $824.00, plus cost of living increases until she reaches age sixty-five (doc. 30, p. 6, ¶ 2, see also attachment to doc. 30). Petitioner filed a Petition For Authorization of Attorney Fees (doc. 19) requesting the authorization of an award of an attorney's fee in the amount of $17,250.50 for 10.45 hours of work. Defendant did not contest the number of hours claimed but contended that an award of $17,250.50 was unreasonable.
Plaintiff's date of birth is July 21, 1941 (doc. 8, p. 3, ¶(B)).
The Magistrate Judge, bound by Eleventh Circuit precedent, Kay v. Apfel, 176 F.3d 1322, 1325 (11th Cir. 1999) (holding that the "lodestar method" applies to the determination of attorney's fees in Social Security cases), calculated the award. The Magistrate Judge found that plaintiff's counsel was entitled to the requested 10.45 hours at this court's prevailing hourly rate of $117.00 (10.45 hrs. x $117.00 = $1222.65), with an upward adjustment of 2.1 after consideration of theJohnson factors ($1,222.65 x 2.1), totaling an award in the amount of $2,567.57.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
The Kay case is factually similar to the instant matter. The attorney, with considerable experience in dealing with Social Security claims, was successful in acquiring a disability award for his client for which she received $52,305.00 in past due benefits. The attorney claimed a fee award of $8,500.00 for 26.6 hours of work. Id. at 1323. The district court applied an hourly rate of $95.00 per hour, the prevailing rate for the Northern District of Georgia, to the 26.6 hours claimed and adjusted the lodestar amount ($95.00 x 26.6 = $2,527.00) upward by a multiple of 1.579, after consideration of various Johnson factors, "with a special emphasis on the contingency fee agreement in the case," awarding a fee of $3,990.13. Id. at 1324, 1328. The Eleventh Circuit concluded that the lodestar was correctly calculated and that the district court had not abused its discretion in adjusting the lodestar, and affirmed. Id. at 1328.
Herein, petitioner objects to the Magistrate Judge's analysis of several of the Johnson factors. First, petitioner contends that he expended a significant amount of time representing plaintiff on a prior social security application (C.A. 92-0605-RV-S), as well as on this action. Petitioner argues that the legal relationship in pursuit of benefits between he and plaintiff began as early as 1990. The Magistrate Judge's Report and Recommendation clearly reflects consideration of petitioner's history with plaintiff, see doc. 27, p. 6, ¶(k). The Magistrate Judge adjusted the lodestar figure upward.
Petitioner argues the novelty and difficulty of the case. The Report and Recommendation also reflects the Magistrate Judge's consideration of this factor. The Magistrate Judge clearly articulates a rational basis for the quantum upward adjustment in the lodestar figure based on this factor. See Id. at p. 5, ¶(b).
Petitioner argues that a significant amount of money was obtained for plaintiff. The Magistrate Judge addresses this factor and upwardly adjusted the lodestar figure accordingly. See Id. at p. 6, ¶(h).
Petitioner also argues that plaintiff concurs completely with the fee requested. The affidavit submitted by plaintiff (doc. 21), was noted by the Magistrate Judge in connection with the analysis regarding the Nature-of-the-fee factor and the lodestar figure was adjusted based on the contractual arrangement between plaintiff and petitioner and on plaintiff's affidavit. See Id. at p. 5, ¶(f).
Overall, the objections raised by petitioner constitute restatements of contentions raised in the Petition For Authorization of Attorney Fees. This court finds that the Magistrate Judge thoroughly addressed petitioner's contentions. This court also finds that the calculation of the award of attorney's fee herein complies with the Eleventh Circuit mandate set in Kay, and that the adjustments made to the lodestar are reasonable, rationally based, and appropriate in light of Kay. Therefore, petitioner's objections to the Report and Recommendation are OVERRULED.
Accordingly, with these modifications and after due and proper consideration of all pleadings in this file, and a de novo determination of those portions of the Report and Recommendation to which objection is made, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED, as MODIFIED above, as the opinion of this court and that plaintiff's be awarded a reasonable attorney's fee under 42 U.S.C. § 406 (b) in the amount of (10.45 hrs. x $117.00 = 1,222.65 x 2.1 = 2,567.57) $2,567.57.