United States District Court, D. Oregon, Medford Division
ORDER ON ATTORNEY FEES
ACOSTA, MAGISTRATE JUDGE
the court is Plaintiff Benjamin Mark S.'s Unopposed Motion
and Memorandum for Attorney fees pursuant to 42 U.S.C. §
406(b). Although Plaintiff is the claimant in this case, the
real party in interest to this motion is his attorney, Tim
Wilborn ("Wilborn"). The Commissioner does not
oppose the motion, but merely acts in a manner similar to
"a trustee for the claimant." Gisbrecht v.
Barnhart, 535 U.S. 789, 798 (2002). Having reviewed the
proceedings below and the amount of fees sought, the court
concludes that Wilborn is entitled to fees under Section
406(b) in the amount of $21, 542.00.
protectively filed his application for a period of disability
and disability insurance benefits on October 8, 2015,
alleging disability beginning November 1, 2013. The claims
were denied initially and on reconsideration. On September 8,
2016, the ALJ issued an unfavorable decision finding that
Plaintiff was not disabled under the Act. The Appeals Council
denied Plaintiffs request for review.
March 1, 2017, Plaintiff filed a Complaint in this court
seeking review of the Commissioner's final decision. On
May 29, 2018, the court issued an Opinion and Order reversing
and remanding the ALJ's decision for an immediate
calculation and payment of benefits. (Op. & Order, ECF
August 23, 2018, Plaintiff was awarded attorney fees in the
amount of $7, 053.33 under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d). (Order, ECF No.
24.) Wilborn represents that of the $7, 053.33, the federal
government confiscated $4, 719.63 to pay Plaintiffs debts
pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010).
Thus, Wilborn received an EAJA fee of $2, 333.70. (Mot.
Att'y Fees at 7 n.6, ECF No. 25.) On March 20, 2019,
Plaintiff filed the instant petition for attorney fees under
Section 406(b) in the amount of $21, 542.00, less the amounts
previously received by Plaintiffs counsel under the EAJA. The
Commissioner does not oppose the motion.
entering a judgment in favor of a Social Security claimant
who was represented by counsel, a court "may determine
and allow as part of its judgment a reasonable fee for such
representation, not in excess of twenty-five 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). An award of fees under § 406(b) is paid
from claimant's past due benefits, and an attorney
receiving such an award may not seek any other compensation
from the claimant. Gisbrecht v. Barnhart, 535 U.S.
789, 796-807 (2002). Accordingly, when a court approves both
an EAJA fee and a § 406(b) fee payment, the
claimant's attorney must refund to the claimant the
amount of the smaller of the two payments. Id.
Gisbrecht, the court must first examine the
contingency fee agreement to determine whether it is within
the statutory 25 percent cap. Id. at 800. The court
also must '"review for reasonableness fees yielded
by [contingency fee] agreements.'" Crawford v.
Astrue, 586 F.3d 1142, 1152 (9th Cir. 2009) (en
banc) (quoting Gisbrecht, 535 U.S. at 808)). As
set forth in Crawford, the court must apply the
following factors: (1) the character of the representation,
(2) the results achieved, (3) any delay attributable to the
attorney requesting the fee, (4) whether the benefits of the
representation were out of proportion with the time spent on
the case, and (5) the risk assumed by counsel in accepting
the case. Id. at 1151-52.
the terms of the contingent-fee agreement between Plaintiff
and Wilborn are within the statutory limits of § 406(b).
The $21, 542.00 in attorney fees Wilborn seeks do not exceed
25 percent of the past due benefits awarded to
Plaintiff. (Mot. Supp. Att'y Fees at 1 -2, 7
& Ex. 1 at 16.) Thus, the terms of this agreement are
within the statute's limit.
court has reviewed the record in the case, the motion, and
the supporting materials including the award of benefits, the
fee agreement with counsel, and the recitation of
counsel's hours and services. Applying the standards set
by Crawford, the court finds the requested fees
reasonable. There is no indication that Wilborn was either
ineffective or dilatory, and he achieved a favorable result
for Plaintiff. Furthermore, the amount of fees requested is
not out of proportion to the work performed by Wilborn, and
the benefits are not so large in comparison to the amount of
time counsel spent that a reduction of the fees requested is
justified. Finally, Wilborn does not assert any risks unique
to this case, and the court identifies none. Wilborn does not
seek an adjustment to the requested fee based on risk factors
and the court concludes no such adjustment is warranted. In
short, after applying the Gisbrecht factors, as
interpreted by Crawford, the court finds that
Plaintiff s counsel has demonstrated that a 25 percent fee is
reasonable for this case.
these reasons, Plaintiffs Unopposed Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (ECF No. 25) is GRANTED
and Wilborn is awarded $21, 542.00 in attorney fees. In light
of the $2, 333.70 in EAJA fees previously received by
Wilborn, the Commissioner is directed to send the send the
balance of $19, 208.30, less any applicable processing or
user fees as allowed ...