Leonard R. McGUIRE, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee
900 F.2d 984
6th Cir.
1990
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Leonard R. McGUIRE, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 89-1669.

United States Court of Appeals, Sixth Circuit.

April 16, 1990.

900 F.2d 984

Argued Jan. 19, 1990.

of would necessarily apply to the facts of this case insofar as that decision seeks to interpret agreements to pay twenty-five percent of any award because that was not the agreement of the parties here.

My second difficulty with the majority opinion is in the vagueness of its instructions to the trial court on remand. Although the trial judge‘s reduction in the actual hours allowed from 34 hours and 45 minutes to 28 hours has been contested in this court, the majority does not purport to review one way or the other the appropriateness of the reduction or intimate the applicable standard. Further, as a practical matter I have difficulty in reconciling the holding of the majority that “was not an attempt to eliminate the discretion which Congress placed in the first instance in the district court” with its observation but two short paragraphs later that “... it appears safe to say that it [] was intended to eliminate the intuitive approach to the resolution of fee requests.” Rather obviously, the exercise of discretion means that there is room for difference of opinion and that such differences alone are not sufficient to upset such an exercise at the trial court. Put another way, what one court is willing to accept as an exercise of “discretion” by the trial court another panel, reviewing it and disagreeing, may conclude that it is only an “intuitive approach.” I would myself be quite deferential in reviewing the exercise of judgment in cases such as this. The district judge or magistrate will normally be in a better position to understand the amount of effort which has gone into the case, to understand the reasonableness of the fees in the light of the attorney‘s own capabilities and efficiency and in light of the standards of the community. I do not believe that either or the Social Security Act requires that a precise methodology must be rigorously chiseled into marble. There remains always the danger that if we allow too little rein in the exercise of discretion in the district court we shall only be encouraging the proliferation of litigation in our own, a concern which was specifically expressed by Judge Peck in : “The courts as well as the Social Security Administration are sometimes spending almost as much time reviewing and setting fees as they are in dealing with the merits of the benefits determination.” .

In conclusion I find myself generally comfortable with the observations in the body of the majority opinion.4 The general advice there provides a useful, if somewhat vague, guide for the judge to determine the weight to be given to a classical contingent fee contract. The only difficulty here is that this is not such a case.

Gerald Benjamin (argued), Levine, Benjamin, Tushman, Bratt, Jerris & Stein, Southfield, Mich., for plaintiff-appellant.

Donna Morros Weinstein, Chief Counsel, Gregory J. Guckenberger, Dept. of Health and Human Services, Chicago, Ill., Pamela J. Thompson, Asst. U.S. Atty., Detroit, Mich., for defendant-appellee.

Before KENNEDY and GUY, Circuit Judges, and ENGEL, Senior Circuit Judge.

PER CURIAM.

This is an appeal by attorney Gerald Benjamin from a reduction in attorney fees claimed after Benjamin successfully represented a claimant in a social security disability benefits case. Benjamin and the claimant were parties to a twenty-five percent contingent fee contract. The benefits awarded amounted to $21,924.50, and Benjamin claimed a fee of $3,969.50, supported by recapitulated time records indicating 31¾ hours of work.1 This results in an hourly rate, if one is computed, of $125 per hour. The district court found the time spent to be reasonable, but only awarded $3,175. In its order, the court stated:

It should be noted that the amount, which has been approved by this Court, is less than that requested by McGuire‘s counsel. While this Court believes that the time, which was expended by Benjamin on behalf of his client, was reasonable, the standard rate of fees for attorneys within this geographical area for work in a case of this kind is $100.00 per hour.

Neither the Secretary nor the claimant contested the fees originally claimed by Benjamin. The Secretary has filed no brief on appeal and has indicated that there is still no objection to the original fee request.

This case is a companion case to , decided this date, involving attorney Benjamin and a similar fee reduction request. We reversed in and we believe the opinion in that case is controlling here. Accordingly, the judgment of the district court is REVERSED and the matter is REMANDED for the entry of a fee award in the amount originally claimed.

ENGEL, Senior Circuit Judge, concurring.

While I dissented in the companion case of , decided this case date, I concur in the reversal here. The first most obvious difference in my judgment is in the specific language of the contract here, which fixes the rate at twenty-five percent of the recovery and evidences the wage earner‘s specific written consent to that amount. More important, I agree that where there is such a contract in effect, the sense of en banc and, indeed, the language of the majority opinion in leads to the conclusion that the trial judge abused his discretion in seeking to affix a flat $100 per hour rate for all Social Security cases regardless of the increment used to compute time billed, of the result, and of the efficiency of the attorney involved. It is no secret that some attorneys can accomplish in one hour more benefit for their client than other attorneys can achieve in five. The calculation of a flat across-the-board fee to apply to all cases and to all attorneys simply represents judicial legislation rather than the exercise of judicial discretion which is tailored to the facts of each case. That exercise, informed by the deference which holds is due to executed contingent fee contracts, is the function of the trial court in fixing attorney fees in this type of case.

Notes

1
The fee sought by Benjamin computes to only eighteen percent of the accrued benefits ultimately received by the claimant. This is explained by regulations promulgated by the Secretary as to the cut-off point for computing attorney fees, as well as our decision in , where we held: “In no event should the fee exceed 25% of the past-due benefits that would have been due if judgment had been rendered within three months of the submission of the Secretary‘s reply brief....”
4
I do, however, have difficulty in understanding the purpose of the majority‘s observation that the trial judge never saw attorney Benjamin‘s actual time records. See footnote 3 majority opinion. His detailed time record appears item by item at pages 9-11 of the joint appendix and there is nothing to suggest that the factual data therein is different from the actual records in attorney Benjamin‘s books.