United States District Court, D. Oregon
OPINION AND ORDER
PAPAK, UNITED STATES MAGISTRATE JUDGE
Katie Gonzales filed this action against defendant
Commissioner of the Social Security Administration on March
9, 2016, seeking judicial review of the Commissioner's
decision finding her not disabled for purposes of entitlement
to disability insurance benefits ("DIB") under
Title II of the Social Security Act (the "Act") and
to Supplemental Security Income ("SSI") under Title
XVI of the Act. On June 5, 2017,  reversed the
Commissioner's decision and remanded this matter for the
calculation and payment of benefits. Gonzales moved unopposed
for an award of attorney fees pursuant to the Equal Access to
Justice Act (the "EAJA") on September 5, 2017, and
I granted the motion the following day, September 6, 2017,
authorizing award of fees to Gonzales' counsel pursuant
to the EAJA in the amount of $8, 671.63. Because
Gonzales' petition for judicial review had previously
been litigated partially successfully before Judge Brown, and
because in connection with litigation before Judge Brown
Gonzales' counsel had previously been awarded EAJA fees
in the amount of $3, 116.16, the total amount of EAJA fees
received to date by Gonzales' counsel in connection with
litigating Gonzales' petition is $11, 787.79.
before the court is Gonzales' unopposed motion (#39),
filed pursuant to 42 U.S.C. § 406(b), for approval of
payment to her counsel out of her retroactive benefits award
of $75, 146.00 the amount of $18, 786.50.' I have
considered the motion and all of the evidence in the record.
For the reasons set forth below, the motion is granted as
discussed below, and payment to Gonzales' counsel of
attorney fees in the requested amount less a deduction for
attorney-attributable delay and less the amount of the EAJA
fees already paid to counsel, or $6, 937.56 (less any
administrative deduction to be assessed by the Commissioner
pursuant to 42 U.S.C. § 406(d)) is approved.
to 42 U.S.C. § 406(b), Gonzales' counsel seeks the
court's approval of payment to him of attorney fees out
of Gonzales' retroactive benefits award in the amount of
$18, 786.50. This amount, as noted above, is precisely equal
to the 25% contingency fee to which Gonzales' counsel is
entitled pursuant to his fee agreement with Gonzales (which
fee counsel has not yet received), but does not reflect any
deduction from the contingency amount pursuant to 42 U.S.C.
§ 406(d) or payment to counsel of EAJA fees.
Gonzales' counsel asserts that upon receipt of any award
of Rule 406(b) fees, he will refund to Gonzales the amount of
the EAJA fees previously received by him in connection with
litigating Gonzales' claim.
406(b) provides, in relevant part, as follows:
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). By contrast with fees awarded
pursuant to the EAJA, a fee-shifting statute, Section 406(b)
fees are paid out of the retroactive benefits awarded to the
successful Social Security claimant. See Id. Counsel
representing Social Security claimants may not seek
compensation from their clients for trial litigation other
than through a Section 406(b) fee. See id.
In the event that both an EAJA fee is awarded and a Section
406(b) fee payment is approved, the claimant's counsel
must refund to the claimant the amount of the smaller of the
two payments. See Gisbrecht v. Barnhart, 535 U.S.
789, 796 (2002). Any Section 406(b) fee must be approved by
the court following analysis of its reasonableness before it
may be paid. See 42 U.S.C. § 406(b)(1)(A).
Gisbrecht, the Supreme Court established that the
reasonableness of a Section 406(b) contingency fee is not to
be determined primarily by reference to the lodestar method
which generally governs fee-shifting disputes. See
Gisbrecht, 535 U.S. at 801-802. Instead, to the extent
contingency fee agreements do not provide for fees exceeding
25% of claimants' retroactive benefits, their terms are
fully enforceable subject only to the court's review
"to assure that they yield reasonable results in
particular cases." Id. at 807, It is the
claimant's counsel's burden to establish the
reasonableness of the calculated fee. See id.
assessing the reasonableness of a Section 406(b) fee, courts
look first to the contingency fee agreement itself, and then
may reduce the resulting award "based on the character
of the representation and the results the representative
achieved." Id. at 808. The claimant's
counsel bears the burden to establish the reasonableness of a
Section 406(b) fee. See Id. at 807.
Gisbrecht court provided, as examples of
circumstances that could justify a downward reduction,
situations in which the attorney was responsible for delay or
in which "the benefits are large in comparison to the
amount of time counsel spent on the case." Id.
The court specified that "the court may require the
claimant's attorney to submit, not as a basis for
satellite litigation, but as an aid to the court's
assessment of the reasonableness of the fee yielded by the
fee agreement, a record of the hours spent representing the
claimant and a statement of the lawyer's normal hourly
billing charge for noncontingent-fee cases." Id.,
citing Rodriquez v. Bowen, 865 F.2d 739, 741 (6th Cir.
1989) (en banc).
Ninth Circuit's en bone decision in Crawford
v. Astrue, 586 F.3d 1142 (9th Cir. 2009), applied the
Gisbrecht reasonableness analysis. The
Crawford court affirmed Gisbrecht holding
that it is error to determine the reasonableness of a Section
406(b) fee by the metric of the lodestar method. See
Crawford, 586 F.3d at 1150.
Gonzales entered into a contingency fee agreement with her
counsel providing for payment of 25% of her retroactive
benefits to her attorney in the event of a favorable outcome
following federal litigation. It therefore now falls to the
court to assess whether $18, 786.50 constitutes reasonable
compensation for Gonzales' counsel in light of the
factors discussed in Gisbrecht and
Character of ...