United States District Court, D. Oregon
Michael H. Simon United States District Judge
March 5, 2013, the Court reversed the decision of the
Commissioner and remanded this case for further proceedings.
On April 23, 2013, the Court granted Plaintiff's
unopposed application for attorney's fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, in the amount of $9, 000.
counsel now moves for attorney's fees of $21, 306.25
pursuant to 42 U.S.C. § 406(b). ECF 40. This figure
represents 25 percent of Plaintiff's retroactive
benefits. Plaintiff's counsel requests an additional
payment from Plaintiff of $12, 306.25, which represents the
requested $21, 306.25 less the EAJA fees of $9, 000 already
received. Although Defendant does not object to the proposed
award, this Court must perform an independent review to
ensure that the award is reasonable. Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002). For the following
reasons, Plaintiff's counsel's motion for fees is
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, 535 U.S. at 807. 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.
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).
prescribed by Gisbrecht and Crawford, the
Court begins its analysis by reviewing the contingency fee
agreement executed by Plaintiff and his counsel. ECF 40-3.
Plaintiff agreed to pay attorney's fees not to exceed 25
percent of the back benefits awarded, which is within the
statutory maximum and is the amount Plaintiff's counsel
seeks in this motion.
Court next considers the appropriate factors to determine
whether a downward adjustment is necessary in this case, and
finds that no downward adjustment is warranted.
Plaintiff's counsel achieved good results for Plaintiff,
the representation of Plaintiff was professional, there was
no significant delay attributable to Plaintiff's counsel,
and the fee was in proportion to the time spent on the case
and would not result in a windfall to Plaintiff's
counsel. Plaintiff's counsel spent approximately 55.1
hours on the case. The effective hourly rate for the
requested fee is, therefore, approximately $386.68, which is
below effective hourly rates that have been approved in this
district. See, e.g., Quinnin v. Comm'r,
2013 WL 5786988, at *4 (D. Or. Oct. 28, 2013) (approving
de facto hourly rate of $1, 240 for attorney time);
Ali v. Comm'r, 2013 WL 3819867 (D. Or. July 21,
2013) (approving de facto hourly rate of $1, 000);
Breedlove v. Comm'r, 2011 WL 2531174 (D. Or.
June 24, 2011) (approving de facto hourly rate of
counsel's amended motion for attorney fees pursuant to 42
U.S.C. § 406(b) (ECF 40) is GRANTED. Plaintiff's
counsel is entitled to $21, 306.25 in § 406(b) fees,
representing 25 percent of Plaintiff's retroactive
benefits recovery. When issuing the § 406(b) check for
payment to Plaintiff's attorney, the Commissioner is
directed to subtract the $9, 000 previously awarded under
EAJA and send Plaintiff's attorney the balance of $12,
306.25, less any applicable administrative assessment as
allowed by statute.