United States District Court, D. Oregon
JUAN M. BARRERA, Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS & RECOMMENDATION
D. CLARKE UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiffs Motion for
Attorney's Fees. Plaintiff seeks an award of $58, 266.00
in attorney's fees pursuant to 42 U.S.C. § 406(b).
The Commissioner does not object to an award of fees, but
argues that the requested amount would constitute a
disproportionate windfall for Plaintiffs counsel and urges
the Court to award a reduced amount of $32, 700.00. For the
reasons discussed below, Plaintiffs Motion should be GRANTED
September 11, 2012, Plaintiff filed a complaint seeking
review of the final decision of the Commissioner. ECF No. 1.
On November 8, 2013, this Court recommended that the
Commissioner's decision be reversed and remanded for
further proceedings. ECF No. 19. The recommendation was
adopted by Senior District Judge Owen M. Panner on December
13, 2013. ECF Nos. 21, 22. On March 10, 2014, the Court
awarded EAJA fees in the amount of $6, 133.28. ECF No. 25. On
remand, the Commissioner awarded benefits, including a
retroactive award of $233, 064.00.
entering judgment in favor of a Social Security claimant who
was represented by an attorney, a 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). Section 406(b) expressly requires any
attorney's fee awarded under that section to be payable
"out of, and not in addition to, the amount of such past
due benefits." Id.
Ghisbrecht v. Barnhart, 535 U.S. 789 (2002), the
Supreme Court clarified that § 406 "does not
displace contingent-fee agreements as the primary means by
which fees are set for successfully representing Social
Security benefits claimants in court." Id. at
807. Courts must approve § 406(b) fee determinations by,
first, determining whether a fee agreement has been executed
and then testing it for reasonableness. Crawford v.
Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en
banc) (citing Ghisbrecht, 535 U.S. at 808).
"Agreements are unenforceable to the extent that they
provide for fees exceeding 25 percent of the past-due
benefits." Gisbrecht, 535 U.S. at 807. Even
within the 25 percent boundary, however, "the attorney
for the successful claimant must show that the fee sought is
reasonable for the services rendered." Id.
Plaintiff is the named party, the real party in interest is
Plaintiffs counsel. Likewise, the Commissioner "has no
direct financial interest in the outcome of this case, but
instead serves as a de facto trustee" for Plaintiff.
Parrish v. Comm'r, 698 F.3d 1215, 1216 n.l (9th
Contingency Fee Agreement
Gisbrecht, the Court's first duty when
considering whether to approve contingency fee agreement is
to determine whether it is within the statutory 25 percent
cap. Gisbrecht, 535 U.S. at 807-08. In this case,
Plaintiff has previously submitted a copy of the Social
Security Retention Agreement and Social Security Federal
Court Retention Agreement between Plaintiff and his attorney.
ECF Nos. 24-1, 24-2. These agreements provide that Plaintiff
will not pay more than 25 percent of past due benefits for
the total fees of all attorneys representing him before the
agency and in federal court. Following remand, Plaintiff was
awarded $233, 064 in past due benefits and now seeks an
attorney fee award of $58, 266, which is exactly 25 percent
of the past due benefits. Both the agreement and the fee
demand comply with the maximum fee allowed by statute.
the Court must determine whether application of the fee
agreement yields "reasonable results" under the
circumstances. Gisbrecht, 535 U.S. at 807-08. In
making this determination, the Court must recognize the
"primacy of lawful attorney-client fee agreements."
Id. at 793. However, although a contingency
agreement should be given significant weight in fixing a fee,
the Court can depart from it if it produces unreasonable
results. Id. at 808. "[D]espite the primacy
afforded to the fee contract created between counsel and
client[, ] . . . courts are empowered to exercise discretion
to ensure that the claimant is protected from having to
surrender retroactive disability benefits in a
disproportionate payment to counsel." Mansfield v.
Astrue, No. 07-cv-1427-HA, 2011 WL 2214739, at *3 (D.
Or. June 6, 2011), aff'd sub nom. Mansfield v.
Comm'r, 509 Fed.Appx. 643 (9th Cir. 2013).
"Routine approval of the statutory maximum allowable fee
should be avoided in all cases." Stone v.
Comm'r, Civ. No. 6:14-cv-01007-CL, 2016 WL 951499,
at *2 (D. Or. Mar. 8, 2016) (quoting Lewis v. Sec'y
of Health & Human Servs., 707 F.2d 246, 250 (6th
Cir. 1983)). "[A] twenty-five percent contingent-fee
award is not automatic or even presumed." Dunnigan
v. Comm'r, No. Cv. 07-1645-AC, 2009 WL 6067058, at
*6 (D. Or. Dec. 23, 2009). The burden rests with Plaintiffs
counsel to establish the requested fee's reasonableness.
Gisbrecht, 535 U.S. at 807.
Ninth Circuit has established four factors to guide the
Court's inquiry into the reasonableness of a requested
fee: (1) the character of the representation; (2) the results
achieved; (3) any delay attributable to the attorney in
seeking the fee; and (4) whether the benefits obtained were
"not in proportion to the time spent on the case"
and raise the ...