Lewis v. Secretary of Health and Human Services, 82-5295

• Decision Date: 13 May 1983
• Docket Number: No. 82-5295,82-5295
• Citation: 707 F.2d 246
• Parties: Eugene LEWIS, Plaintiff-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 246

707 F.2d 246

2 Soc.Sec.Rep.Ser. 78

Eugene LEWIS, Plaintiff-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.

No. 82-5295.

United States Court of Appeals Sixth Circuit.

Argued March 31, 1983.

Decided May 13, 1983.

W. Hickman Ewing, Jr., U.S. Atty., Arthur S. Kahn, Asst. U.S. Atty. (argued), Memphis, Tenn., for defendant-appellant.

Walter Buford (argued), Memphis, Tenn., for plaintiff-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PORTER, Senior District Judge. ^*

MERRITT, Circuit Judge.

This appeal, arising out of a Social Security case, presents for review the awarding of fees by the district courts to attorneys of plaintiffs who prevail in litigation of claims against the Secretary. Under 42 U.S.C.A. Sec. 406(b), the attorney who successfully represents a claimant is entitled to receive a portion of the claimant's award as compensation for legal services rendered in pursuit of the claim. ¹ See Webb v. Richardson, 472 F.2d 529, 536 (6th Cir.1972) (tribunal making attorney's fee award can consider all services performed by attorney from time claim filed with Secretary). Hence, the real party in interest in this appeal is Walter Buford, the attorney who represented plaintiff Eugene Lewis in the administrative and judicial proceedings below.

I.

The Secretary asks us to review Judge Odell Horton's decision to grant Mr. Buford's fee petition for 25% of the total of past-due benefits that had been awarded to Mr. Lewis. After a hearing at which the government's attorney, Arthur Kahn, vigorously objected to this fee petition for 25% of plaintiff's award--the maximum fee allowed by the statute--Judge Horton denied Mr. Kahn's request to examine Mr. Buford as to the accuracy of the fee petition, and granted plaintiff's counsel's request for a fee of $3,363.67, a sum that according to counsel's itemized fee petition, would compensate him at a rate of nearly $75 per hour.

Although Mr. Buford does not dispute the issue on appeal, we note by way of introduction that the United States Attorney is entitled to participate in attorneys' fees adjudications under 42 U.S.C.A. Sec. 406(b), supra. Webb v. Richardson, supra; MacDonald v. Weinberger, 512 F.2d 144 (9th Cir.1975); McKittrick v. Gardner, 378 F.2d 872 (4th Cir.1967). In view of the humanitarian policy of the Social Security program to benefit the disabled, we agree that the Secretary "retains an interest in the fair distribution of monies withheld for attorney's fees," Moore v. Califano, 471 F.Supp. 146, 149 (S.D.W.Va.1979), appeal dismissed, 622 F.2d 585 (4th Cir.1980).

The instant case involves a 25% contingency fee contract between Mr. Lewis and his attorney. This fact, although a consideration, does not preclude our review of the propriety of the award. As in most Social Security cases, Mr. Lewis' entitlement to benefits constituted the sole issue in the case; the proper method of computation of benefits was not disputed. In such cases, there is generally a much less direct correlation between the size of the claimant's recovery and the lawyer's skill, effort or effectiveness than there is in, say, most personal injury cases. See McKittrick v. Gardner, supra, at 874. Moreover, we are not overly impressed by Mr. Buford's observation that Mr. Lewis has not objected to the size of the award. As the court noted in McKittrick, supra, at 874, the least competent and diligent attorney "may be the quickest to declare to the client 'I won your case.' Such a claimant is unlikely to object to an allowance of a fee in accordance with his contingent fee arrangement, for, rightly or wrongly, he will usually give the lawyer all of the credit for the success in winning an award of benefits for him."

II.

Mr. Buford's role in this case began following the Secretary's termination of disability benefits to Mr. Lewis. After the filing of a complaint in United States District Court for the Western District of Tennessee, the Secretary voluntarily moved to have the case remanded for a supplemental hearing that would include testimony by a vocational expert. At this hearing, Mr. Lewis was represented by Mr. Tom Mitchell, an associate in Mr. Buford's office. The hearing record shows that Mr. Mitchell was rather poorly prepared: that he had not, until just before the hearing, reviewed the single new piece of medical evidence; that he was unfamiliar with the other exhibits in the record and the regulations governing the case; and that he ceded the examination of his client to the administrative law judge and declined to supplement the ALJ's interrogation of Mr. Lewis.

After the Appeals Council's adoption of the ALJ's opinion denying Mr. Lewis' claim, the case proceeded in the District Court of Judge Bailey Brown, who referred it to a United States Magistrate. The latter issued a briefing schedule that ordered the claimant to submit a brief within thirty days. No such brief was ever filed.

On the same day that the Magistrate issued his Report and Recommendation in favor of Mr. Lewis' claim, the Secretary, who had not yet received the Report, filed a Motion for Order Affirming Secretary's Decision, with a fourteen-page Memorandum in Support. In response, Mr. Buford filed a four-sentence Memorandum objecting to the untimely submission of the Secretary's Motion and Memorandum and relying on "the objective and fairly complete facts and the sound and apt principles and precedents stated" in the Magistrate's Report. Although Mr. Buford's Memorandum contained no case citation or any other manifestation of legal research, he subsequently billed two hours of time for its preparation. Two days later, the Secretary filed a Motion to Resubmit Case to Magistrate. Although this Motion was only two pages long and cited no cases, Mr. Buford billed two hours to review it. ² He then replied in another four-sentence document, for which he billed two more hours of preparation time. Like its predecessor, this submission cited no legal authority. Over the government's objection, Judge Robert M. McRae, Jr. (who had inherited the case following Judge Brown's appointment to the Sixth Circuit Court of Appeals) adopted the Magistrate's Report and Recommendation and entered an order in favor of Mr. Lewis.

Nearly two years after the judgment had been entered, Mr. Buford filed a Memorandum for Approval and Payment of Fee, to which he attached an itemized fee petition. ³ By this time, the case had migrated to Judge Horton's docket. At the ensuing hearing on the attorney's fee petition, Judge Horton allowed Assistant U.S. Attorney Kahn to present his objections to the petition but did not require Mr. Buford to submit to cross-examination on the issue. Mr. Kahn proceeded to make a detailed statement criticizing the quality of legal representation afforded Mr. Lewis and questioning the accuracy of Mr. Buford's fee petition. ⁴ Mr. Kahn closed by stating that "under all the facts in this record, it would be truly unconscionable to award Mr. Buford what he asked for." (App. at 36.)

After a brief rebuttal by Mr. Buford at the end of Mr. Kahn's statement, Judge Horton made the following ruling from the bench:

Well, gentlemen, I think one thing is probably fairly obvious to everybody here, and that is I wish this had gone back to Judge McRae rather than coming here. But fate decreed otherwise. It seems to the Court that given the fact of such a long time lapse, four and a half years, or thereabouts, and given the fact that a good result was achieved for the benefit of Mr. Lewis, and given the fact that in the Court's mind these fees ought never to be put so low as to discourage highly competent lawyers from accepting these fees, and given the reality of today's economic climate, it just seems to the Court, Mr. Kahn, that the Court ought to just go ahead and approve the fee and commit that unconscionable act that you indicated the Court would be committing if it approved the fee. At this late date, and given the fact that Mr. Buford admits he did not do all the work himself, and that much of it may have been performed by others in his office, and that he has no independent recollection of many of these matters,...