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SNIZASKI v. HECKLER

April 23, 1985

ROSELIA SNIZASKI, Plaintiff
v.
MARGARET HECKLER, Secretary of Health and Human Services, Defendant; JOHN VARLEY, Plaintiff v. MARGARET HECKLER, Secretary of Health and Human Services, Defendant; ROBERT J. ANDREWS, Plaintiff v. SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant; WILLIAM W. GEARY, Plaintiff v. SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants



The opinion of the court was delivered by: TEITELBAUM

 Before the Court are fee petitions in four social security disability cases. 42 U.S.C. § 406(b)(1) authorizes a court to fix and determine a reasonable fee for representation of successful disability claimants in proceedings before the court. In determining a reasonable fee a court is faced with two competing considerations: first, the attorney's compensation must be sufficient to encourage members of the bar to undertake representation of disability claimants and second, the disability award, from which the attorney's fee is paid, is an already-inadequate stipend for the maintenance of the claimant and his dependents. MacDonald v. Weinberger, 512 F.2d 144, 146-147 (9th Cir. 1975).

 In general, the reasonableness of court-awarded attorney's fees is determined under the criteria set forth in Lindy Bros. Bldrs., Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) and its progeny. Adapting Lindy to a social security disability case, the court considers the amount of time spent on the case and the type of services performed, the amount of the fee requested, the complexity of the case and the level of skill and competence required, and the contingent nature of the case. See 20 C.F.R. § 404.1725(b) for factors considered by the Secretary when evaluating a request for approval of a fee for services before the agency; see also McKittrick v. Gardner, 378 F.2d 872, 875 (4th Cir. 1967) for discussion of contingent nature of case.

 C.A. No. 83-1984 and 83-2410

 At Civil Action No. 83-2410, Geary v. Secretary, Health and Human Services, petitioner Caramanna requests $ 1400.00 for 15 1/4 hours of representation before the Court. In this petition 9 3/4 hours are listed at $ 90 per hour and 5 1/2 hours at $110 per hour. *fn1" Again preparing a 1 1/2 page complaint, substantially similar to the complaint at Civil Action No. 83-1984, required 3 1/2 hours and writing 3 cover letters to the Court required 1/2 hour each.

 In Lewis v. Secretary, Health and Human Services, 707 F.2d 246 (6th Cir. 1983) the attorney in a social security disability case claimed 2 hours for preparing a 4 sentence memorandum which contained no case citation or other manifestation of legal research, 2 hours for reviewing a motion filed by the government which was 2 pages long and cited no cases, and 2 hours for preparing a 4 sentence reply which cited no legal authority. The factual accuracy of these items, and others, was contested by the Secretary. Because the petitioner's factual assertions were disputed, it was held that a full evidentiary hearing was required to determine a reasonable fee.

 Here the Secretary does not contest the factual assertions in the fee petitions and raises no factual dispute to be resolved through an evidentiary hearing.

 The present situation is akin to the situation which occurs when a class action settlement results in the creation of a fund from which attorney's fees and awards to class members will be paid and the defendants no longer have any incentive to participate in the proceedings. When faced with the latter situation this member of the Court stated:

 
The unfortunate result is the necessity for the judge to assume the advocate's role left unfilled by the defendant's departure. The dilemma thereby created for the Court finds the judge playing "devil's advocate" on behalf of the disinterested defendants, while at the same time attempting to exercise his impartiality in making a just determination of reasonableness. To require the judge to occupy an adversary position during the fee proceeding is highly inconsistent with his acknowledged duty to act as an impartial arbitrator.

 Haas v. Pittsburgh National Bank, 77 F.R.D. 382, 383 (W.D. Pa. 1977).

 In Haas judicial schizophrenia was avoided by the appointment of a guardian ad litem to represent the interest of the plaintiff class in connection with the determination of reasonable attorney's fees, with the award of the guardian's fee from the settlement fund. While such a procedure in social security disability cases would insure that claimants, who must ultimately bear the attorneys' fees, are adequately represented and protected, unfortunately, such a solution is not economically practical in these cases.

 A potential conflict of interest between attorneys seeking compensation and their clients imposes on the court an independent duty to scrutinize fee petitions, but nonetheless a basis in the record is required for the court's determinations. Cunningham v. City of McKeesport, 753 F.2d 262, slip op. at 8 (3d Cir. 1985). Because the Secretary has not contested the factual assertions in the fee petitions, and the Court believes it inappropriate to do so, there is no basis in the record to question the accuracy of the fee petitions.

 Therefore the undisputed hours and hourly rate set forth in the fee petitions, as certified by counsel, must be accepted as accurate. This results in a lodestar of $ 1787.50 at Civil Action No. 83-1984 and a ...


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