Whitt v. Califano, s. 77-2322
| Decision Date | 12 July 1979 |
| Docket Number | 77-2392 and 78-1172,77-2388,Nos. 77-2322,77-2390,s. 77-2322 |
| Parties | Grover Earl WHITT, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Hobert F. KISER, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Willie Oscar HACKNEY, Appellee, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellant. Seth ADKINS, Appellee, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Appellant. Suvera STEVENSON, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Gwenda D. Jones, Dept. of HEW, Baltimore, Md. (Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Paul R. Thomson, Jr., U. S. Atty. and E. Montgomery Tucker, Asst. U. S. Atty., Roanoke, Va., on brief), for appellant.
Matthew J. Cody, Jr., Lebanon, Va. (William J. Sturgill and Hugh P. Cline, Norton, Va., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.
This is an appeal by the Secretary of Health, Education and Welfare (HEW) from the allowance by the district court of attorneys' fees to claimants' attorneys in five black lung cases. 1 Because the objections of the Secretary to the allowance in all the cases are similar, the cases were consolidated on appeal. We remand for further proceedings.
The Secretary urges that it is manifest the district judge in making the awards in the cases improperly gave consideration to and granted compensation, in part, for work done by claimants' counsel in administrative proceedings and that, if the time spent in representing the claimants in the administrative proceedings is disregarded, the amounts allowed are grossly excessive on the basis of counsel's time spent in representation of the claimants before the court. In support of these objections, the Secretary points to the several petitions filed by counsel for the allowance of fees, in all of which counsel, in itemizing their services, and in allocating time spent in such services, include their services in the administrative proceedings. He, also, questions including in the statement of services charges for the preparation of the petition for a fee allowance and of the drafting of the order allowing a fee. 2 He would analyze the services of counsel largely in terms of time expended, as shown in the itemized statement of services as filed with the court by counsel. On that basis, he contends that, if the awards are restricted to services in the court proceedings, they vary in hourly charges from approximately $150 to $520. He argues that this great disproportion in allowances, as based on time spent, bespeaks excessiveness. He complains, further, that the awards were all couched in the same language, except for title of case and adjustment of figures to conform to the facts of the particular case, and followed a standard "boiler-plate" form, in which the allowances represented somewhere between roughly 20 and 22 percent of the past-due benefits due in each case. It is apparently his position that this circumstance suggests that the allowance followed a pattern under which fees were awarded perfunctorily, close to the maximum allowable by statute, without a careful review of the services rendered by counsel in the particular case.
The legal objections raised by the Secretary were considered and decided in McKittrick v. Gardner (4th Cir. 1967) 378 F.2d 872, which has generally been regarded as the guiding authority governing the allowance of fees under the Social Security Act. It is unnecessary to repeat all the general considerations stated in that decision for governing the exercise of the district judge's discretion in the allowance of attorney's fees in cases such as these. We particularly emphasized in that case that, though, the district judge, in making his award of fees, is properly clothed with considerable discretion, he was neither to consider nor to make any allowance for services rendered by counsel in the administrative proceedings. That power to make allowances for those services rests solely with the Secretary. It follows that, lest the district court be misled about the extent of counsel's services, counsel, in listing the services, expressed in terms of hours expended for which he seeks allowance, should not include any itemization of services rendered in the administrative proceedings.
The Secretary argues vigorously that...
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Coup v. Heckler
...case. See Whiteman v. Bowen, 640 F.Supp. 992 (S.D.Ohio 1986).3 See Gardner v. Menendez, 373 F.2d 488 (1st Cir.1967); Whitt v. Califano, 601 F.2d 160 (4th Cir.1979); Fenix v. Finch, 436 F.2d 831 (8th Cir.1971); MacDonald v. Weinberger, 512 F.2d 144 (9th Cir.1975).4 Of course, the client must......
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Doe v. Chao
...Fourth Circuit. See McKittrick v. Gardner, 378 F.2d 872 (4th Cir.1967); Redden v. Gardner, 391 F.2d 670 (4th Cir.1968); Whitt v. Califano, 601 F.2d 160 (4th Cir.1979): Blankenship v. Schweiker, 676 F.2d 116 (4th Cir.1982); Ballard v. Schweiker, 724 F.2d 1094 (4th Cir.1984). The establishmen......
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Holmberg v. Bowen, Civ. No. 87-5010.
...at the agency level are committed by statute to the discretion of the Secretary of Health and Human Services. Id., citing Whitt v. Califano, 601 F.2d 160 (4th Cir.1979); MacDonald v. Weinberger, 512 F.2d 144 (9th Cir.1975); Fenix v. Finch, 436 F.2d 831 (8th With respect to an award under se......
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Frazier v. Sullivan
...§ 406(a). Furthermore, he may not collect attorney's fees for time spent preparing his own fee petition. See Whitt v. Califano, 601 F.2d 160, 161 n. 2 (4th Cir.1979). Although the Secretary has objected to other aspects of the fee petition, he has not challenged the number of litigation hou......
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Appendices
...of Claimant— Favorable Award of Benefits to Claimant—Determination of Attorney’s Fees · SSR 80-20c Whitt v. Califano , 601 F.2d 160 (4th Cir. 1979)—Black Lung Benefits—Representation of Claimant—Fixing Amount of Attorney’s Fees—Administrative and Court Proceedings · SSR 82-19c Rahman v. Har......
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Appendices
...of Claimant— Favorable Award of Benefits to Claimant—Determination of Attorney’s Fees · SSR 80-20c Whitt v. Califano , 601 F.2d 160 (4th Cir. 1979)—Black Lung Benefits—Representation of Claimant—Fixing Amount of Attorney’s Fees—Administrative and Court Proceedings · SSR 82-19c Rahman v. Har......
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Appendices
...of Claimant— Favorable Award of Benefits to Claimant—Determination of Attorney’s Fees · SSR 80-20c Whitt v. Califano , 601 F.2d 160 (4th Cir. 1979)—Black Lung Benefits—Representation of Claimant—Fixing Amount of Attorney’s Fees—Administrative and Court Proceedings · SSR 82-19c Rahman v. Har......
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Appendix 1: guide to important social security rulings and acquiescence rulings
...(1968)—Past-Due Benefits for Calculation of Attorney Fees Include Amount of Benefits Paid to Auxiliaries • SSR 80-20c Whitt v. Califano , 601 F.2d 160 (4th Cir. 1979)—Black Lung Benefits—Representation of Claimant—Fixing Amount of Attorney’s Fees—Administrative and Court Proceedings • SSR 8......