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Alter v. Colvin

United States District Court, D. Oregon

July 11, 2014

CHRISTINE ALTER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Tim D. Wilborn, WILBORN LAW OFFICE, P.C., Of Attorneys for Plaintiff.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States Attorney, United States Attorney's Office, District of Oregon, Nicole Jabaily, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Of Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

United States Magistrate Judge John V. Acosta issued Findings and Recommendation in this case on May 16, 2014. Dkt. 33. Judge Acosta recommended that the Court grant in part and deny in part the unopposed motion for attorney's fees pursuant to 42 U.S.C. § 406(b) filed by counsel for Plaintiff Christine Alter.

Plaintiff Christine Alter's counsel timely filed objections to the Magistrate's Findings and Recommendation. Dkt. 35. Defendant responded to counsel's objections. Dkt. 37. Plaintiff's counsel objects to Judge Acosta's finding that the attorney's fee requested pursuant to 42 U.S.C. § 406(b) is not in proportion to the time spent on the case. Plaintiff's counsel also objects to Judge Acosta's recommendation that the petition for fees in the amount of $27, 613.25 be reduced to $19, 329.28, approximately 70 percent of the total requested fee amount.

STANDARDS

A. Review of Magistrate's Findings and Recommendation

Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendation, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3).

For those portions of a magistrate's findings and recommendation to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report[.]"); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge[] sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that "[w]hen no timely objection is filed, " the Court review the magistrate's recommendation for "clear error on the face of the record."

B. Fees Pursuant to 42 U.S.C. § 406(b)

Under 42 U.S.C. § 406(b), a court entering judgment in favor of a social security disability insurance claimant who was represented by an attorney "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." Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). Counsel requesting the fee bears the burden to establish the reasonableness of the requested fee. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The attorney's fee award is paid by the claimant out of the past-due benefits awarded; the losing party is not responsible for payment. Gisbrecht, 535 U.S. at 802.

A court reviewing a request for attorney's fees under § 406(b) "must respect the primacy of lawful attorney-client fee agreements, ' looking first to the contingent-fee agreement, then testing it for reasonableness.'" Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). Routine approval of fees pursuant to a contingency fee agreement calling for the statutory maximum is, however, disfavored. See Fintics v. Colvin, 2013 WL 5524691, at *2 (D. Or. Oct. 2, 2013). Contingent fee agreements that fail to "yield reasonable results in particular cases" may be rejected. Gisbrecht, 535 U.S. at 807. There is no definitive list of factors for determining the reasonableness of the requested attorney's fees, but courts may consider the character of the representation, the results achieved, whether there was delay attributable to the attorney seeking the fee, and whether the fee is in proportion to the time spent on the case (to avoid a windfall to attorneys). See id. at 808; Crawford, 586 F.3d at 1151-52. Although the Supreme Court has instructed against using the lodestar method to calculate fees, a court may "consider the lodestar calculation, but only as an aid in assessing the reasonableness of the fee." Crawford, 586 F.3d at 1148; see also Gisbrecht, 535 U.S. at 808 (noting that courts may consider counsel's record of hours spent representing claimant and counsel's normal hourly billing rate for non-contingency work as an aid in considering reasonableness of requested fees).

BACKGROUND

The relevant procedural background in this matter is discussed in full in Judge Acosta's Findings and Recommendation. Dkt. 33. Briefly, Alter's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") was denied by an Administrative Law Judge ("ALJ"). The Appeals Council denied Alter's request for review, making the ALJ's decision the final decision of the Commissioner of the Social Security Administration ("Commissioner"). Alter challenged the ALJ's ruling on five grounds, which Defendant opposed. Judge Acosta issued Findings and Recommendation, specifically recommending that this Court reverse the Commissioner's decision denying Alter DIB and SSI and remand for an immediate award of benefits. Dkt. 21. The Court adopted Judge Acosta's Findings and ...


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