United States District Court, D. Oregon
ORDER ON FEES
Michael J. McShane United States District Judge
moves the Court pursuant to 42 U.S.C. § 406(b) for an
award of attorney's fees. Pl.'s Br. 1, ECF No. 27.
Plaintiff's attorney, Richard Sly, seeks fees totaling
$37, 112. Pl.'s Br. 1. The Commissioner of Social
Security (“Commissioner”) opposes the motion,
contending that the requested fee would be an unreasonable
windfall for Mr. Sly, though makes no effort to suggest an
alternative figure. See Gov't Resp. Br. 2, ECF
No. 32. Because Mr. Sly successfully pursued the claims of
both Plaintiff and his minor dependent children over the
course of nine years and continues to represent Plaintiff
without compensation as he appeals deductions from his award
of past-due benefits, the requested fee is reasonable and
Plaintiff's motion is GRANTED.
entering judgment in favor of a social security claimant, a
court may award the claimant's counsel a
“reasonable fee.” 42 U.S.C. § 406(b)(1)(A).
The fee is to be paid by the claimant out of his or her
past-due benefits. Id. Although Section 406(b)
“does not displace contingent-fee agreements as the
primary means by which fees are set, ” Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002), it caps any fee
award at “twenty-five percent of the [claimant's]
past-due benefits, ” 42 U.S.C. § 406(b)(1)(A). In
addition, to the extent a contingent-fee arrangement would
yield an unreasonable result, the court must apply a downward
variance. Gisbrecht, 535 U.S. at 807. To determine
whether a requested fee is reasonable, courts examine four
non-exhaustive factors: (1) the character of the
representation; (2) the results achieved; (3) any delay
attributable to the attorney seeking the fee; and (4) whether
the fee would be disproportionate to “the time spent on
the case” and produce a “windfall” for the
attorney. Crawford v. Astrue, 586 F.3d 1142, 1151-52
(9th Cir. 2009) (citing Gisbrecht, 535 U.S. at 808).
requests a fee of $37, 112, or $1, 325.42 per hour, for 28
hours of work. Pl.'s Br. 1. The Commissioner opposes Mr.
Sly's request, arguing that the fee would be a windfall.
Gov't Resp. Br. 2-3. The fee is based on a contingency
agreement with Plaintiff and is meant to represent 25% of the
total past-due benefits owed to Plaintiff and his dependent
children from January 2009 through February 2017. Pl.'s
Br. 5-6. Although Plaintiff and his dependent children
recovered past-due benefits through April 2018, and the fee
agreement allows for fees up to 25% of all past-due
benefits, Mr. Sly waives the right to recover fees on the
past-due benefits from March 2017 through April 2018.
Pl.'s Br. 5. In addition, despite a pending appeal of
deductions from Plaintiff's backpay, Mr. Sly also waives
the right to seek additional fees based on any retroactive
increase to Plaintiff's past-due benefits. Pl.'s Br.
4; Sly Decl. ¶ 8, ECF No. 27-3.
initial matter, Mr. Sly miscalculates Plaintiff's
past-due benefits for the period from January 2009 through
February 2017. On page five of his brief, Mr. Sly finds that,
for the period in question, Plaintiff received backpay
totaling $91, 759. The sixth line of his calculation,
however, omits the months of January 2015 through November
2015. Compare Pl.'s Br. 5 with May 14,
2018 Notice of Award 1, ECF No. 27-5. When those months are
included, each at a rate of $588, Plaintiff received $98, 227
in past-due benefits between January 2009 and February 2017.
See May 14, 2018 Notice of Award 1. The total
past-due benefits received by Plaintiff and his
dependent children for that period was $154, 916.
See May 14, 2018 Notice of Award 1; Aug. 18, 2018
Notice of Award 1, ECF No. 27-7. Mr. Sly therefore intended
to request 25% of $154, 916-a fee of $38, 729, at a rate of
$1, 383.17 per hour, for 28 hours of work.
a reasonable fee under the circumstances. Mr. Sly ably
represented Plaintiff and his two minor children before this
Court and achieved favorable results-a stipulated remand and
subsequent award of benefits-without undue delay. Mr. Sly did
seek, and was granted, one ninety-day extension in which to
file Plaintiff's opening brief, but the extension was
unopposed, relatively short, and due to the winter holidays
and “several minor medical procedures.” Pl.'s
Mot. for Extension 1-2, ECF No. 13. The only issue disputed
by the Commissioner is whether the requested award would
produce a windfall for Mr. Sly. See Gov't Resp.
Br. 2-3. Although the requested fee is at the high end of
awards customarily granted in this District, see,
e.g., Quinnin v. Colvin, No. 1:12-cv-01133-SI,
2013 WL 5786988, at *3 (D. Or. Oct. 28, 2013) (approving
de facto hourly rate of $1, 240); Breedlove v.
Astrue, No. 3:07-cv-1743-AC, 2011 WL 2531174, at *9 (D.
Or. June 24, 2011) (approving de facto hourly rate
of $1, 041.84), it is not unprecedented, see,
e.g., Edgar v. Comm'r, No.
3:14-cv-267-SI, slip op. at 5 (D. Or. June 5, 2018)
(approving de facto hourly rate of $1, 820 for 9.1
hours of work), and the departure is reasonable on this
particular, Mr. Sly has doggedly pursued Plaintiff's
claims for more than nine years; he was responsible for the
claim of not just Plaintiff, but also those of his two minor
dependent children; he seeks no portion of the past-due
benefits which accrued to Plaintiff in the fourteen months
following the ALJ's favorable decision; he seeks no
portion of the past-due benefits which may retroactively
accrue to Plaintiff if his pending appeal is successful; and
he represented Plaintiff at three separate ALJ hearings,
twice petitioned the Appeals Council (securing remand from
one appeal), litigated the instant action in federal court,
and continues to represent Plaintiff in his appeal at the
agency level. As a percentage of the total past-due benefits
paid to Plaintiff and his children thus far ($169, 350.50),
Mr. Sly will receive just 22.8%-less than the bargained for
25%. Moreover, adding the 2.5 hours Mr. Sly spent replying to
the Commissioner in this matter, his effective hourly rate
drops to $1, 269. The Court finds an award of $38, 729, and
the corresponding hourly rate of $1, 269, to be reasonable on
the facts of this case.
motion for attorney's fees pursuant to 42 U.S.C. §
406(b) is GRANTED. Mr. Sly is entitled to attorney's fees
in the amount of $38, 729. The Commissioner is directed to
issue Mr. Sly a Section 406(b) check in the amount of $38,
729, less any applicable administrative assessment allowed by
statute. Upon receipt of the check, Mr. Sly shall refund to
Plaintiff the $5, 321.68 fee he previously received under the
Equal Access to Justice Act, 28 U.S.C. § 2142.