United States District Court, D. Oregon
Michael H. Simon, United States District Judge
January 7, 2016, the Court remanded this case for further
proceedings, based on the stipulation of the parties. On
February 3, 2016, the Court granted Plaintiff's
stipulated application for attorney's fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, in the amount of $2, 169.19.
counsel now moves for attorney's fees of $10, 845.50
pursuant to 42 U.S.C. § 406(b). If awarded the requested
§ 406(b) attorney's fees, Plaintiff's counsel
will reimburse Plaintiff the $2, 169.19 EAJA fee
award. Plaintiff's retroactive benefits
totaled $67, 382. Accordingly, the requested § 406(b)
attorney's fees represent approximately 16
percent of Plaintiff's retroactive benefits.
Defendant does not object to the requested fees.
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.
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 25-1.
Plaintiff agreed to pay attorney's fees not to exceed 25
percent of the back benefits awarded. Here, the requested fee
award is approximately 16 percent and is well under the
statutory maximum and the amount agreed upon in
Plaintiff's contingency fee agreement.
Court next considers the appropriate factors to determine
whether a downward adjustment is necessary in this case.
Plaintiff's counsel achieved good results for Plaintiff
(a stipulated remand for further proceedings), the
representation of Plaintiff was professional, and there was
no delay attributable to Plaintiff's counsel. The fee
award also will not result in a windfall to Plaintiff's
counsel. Plaintiff's counsel worked 11.4 hours, and thus
the effective hourly rate is approximately $951. The Court
notes that effective hourly rates exceeding $1, 000 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 $1, 041.84). The Court finds that no downward
adjustment is necessary in this case.
counsel's motion for attorney fees pursuant to 42 U.S.C.
§ 406(b) (ECF 25) is GRANTED. Plaintiff's counsel is
entitled to attorney's fees in the amount of $10, 845.50.
The Commissioner is directed to issue Plaintiff's
attorney a section 406(b) check in the amount of $10, 845.50,
less any applicable administrative assessment as allowed by
statute. Upon receipt of the 406(b) check, Plaintiff's
counsel shall refund to Plaintiff the $2, 169.19 previously
received by Plaintiff's counsel under the EAJA.
IS SO ORDERED.