United States District Court, D. Oregon, Portland Division
Tim Wilborn WILBORN LAW OFFICE, P.C. Las Vegas, NV, Attorney for Plaintiff.
Adrian L. Brown Assistant United States Attorney District of Oregon Portland, OR, Richard Rodriguez Special Assistant United States Attorney Office of the General Counsel Social Security Administration Seattle, WA, Attorneys for Defendant.
FINDINGS AND RECOMMENDATION
DENNIS J. HUBEL, Magistrate Judge.
Before the Court is Plaintiff Jeremy Milliron's ("Plaintiff") unopposed motion for attorneys' fees pursuant to 42 U.S.C. § 406(b). Plaintiff's counsel seeks approval of attorneys' fees in the amount of $12, 612.50-which represents 25% of the past due benefits awarded to Plaintiff-less $6, 100.00 in attorneys' fees previously awarded under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Based on the factors established in Gisbrecht v. Barnhart, 535 U.S. 789 (2002), and explained in Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) (en banc), the Court recommends granting Plaintiff's unopposed motion (Docket No. 18) for § 406(b) fees.
Plaintiff filed the present action on May 31, 2011, seeking judicial review of the Commissioner of Social Security's ("Commissioner") denial of his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act. This is the second time Plaintiff has sought judicial review of the Commissioner's denial of his applications. The first proceeding was filed by Plaintiff's counsel of record on October 29, 2007, and it was assigned to Judge Anna Brown. Plaintiff's counsel obtained a stipulated remand shortly after filing a twenty-page opening brief on August 14, 2008, wherein he challenged many (if not all) of the issues addressed in the district court's agreed-upon remand order. On February 11, 2009, the district court entered an order approving Plaintiff's counsel's unopposed application for EAJA fees in the amount of $4, 900.00.
When Plaintiff returned to federal district court for a second time on May 31, 2011, after further unsuccessful proceedings before an Administrative Law Judge ("ALJ"), his counsel negotiated with the Commissioner and obtained a stipulated remand without filing any briefing. It's clear from the district court's November 29, 2011 remand order, however, that many of the issues raised by Plaintiff's counsel in the first proceeding remained outstanding. On February 28, 2012, Judge Hernandez entered an order approving Plaintiff's counsel's unopposed application for EAJA fees in the amount of $1, 200.00. A little over two years later, after receiving a favorable outcome on the second remand (an award of $50, 450.00 in past due benefits), Plaintiff's counsel filed the unopposed motion for § 406(b) fees which is now before the Court.
II. LEGAL STANDARD
A. Section 406(b)
In Social Security cases, attorney fee awards are governed by 21 § 406(b), which provides in pertinent part:
(1)(A) Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment....
42 U.S.C. § 406(b)(1)(A).
B. Controlling Precedent
Gisbrecht concerned fees awarded under § 406(b). Gisbrecht, 535 U.S. at 792. Specifically, the Supreme Court addressed the question, which sharply divided the Federal Courts of Appeals: "What is the appropriate starting point for judicial determinations of a reasonable fee ...