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Coulon v. Berryhill

United States District Court, D. Oregon, Eugene Division

June 14, 2019

DENAK. COULON, Plaintiff,
NANCY BERRYHILL, Commissioner of Social Security, Defendant.


          MOSMAN, J.

         Plaintiff Dena Coulon brought this action challenging the Commissioner's final decision denying her application for Social Security Disability Insurance Benefits. After Ms. Coulon filed her opening brief, the Commissioner stipulated to a remand for further proceedings. Stipulated Mot. [19]. On May 2, 2016, Judge Garr M. King granted the parties' stipulated motion to remand for further administrative proceedings pursuant to 42 U.S.C. § 405(g). Order [20]. Judge King also granted Ms. Coulon's unopposed motion for $6, 964.25 in attorney fees under the Equal Access to Justice Act (EAJA). Order [23]. After remand, the Commissioner found Ms. Coulon disabled within the meaning of the Social Security Act as of December 18, 2008. Jones Decl. [28] Ex. 3 at 2. This determination resulted in the award of $97, 945.00 for past-due Social Security benefits. Id. at 3.

         After the Commissioner found Ms. Coulon disabled and awarded past-due benefits, Ms. Coulon's attorneys, Binder & Binder, moved for an award of $24, 486.25 in attorney fees pursuant to 42 U.S.C. § 406(b)(1). Mot. [24]. Shortly thereafter, this Court again granted Ms. Coulon's motion for attorney fees under the EAJA, rather than ruling on the motion for fees under § 406(b)(1). See Order [27]. I now consider Binder & Binder's motion for attorney fees under § 406(b)(1).


         Under 42 U.S.C. § 406(b)(1), 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." "[T]he attorney for the successful claimant must show that the fee sought is reasonable for the services rendered." Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). It is the attorney's burden to show that the fee sought is "reasonable based on the facts of the particular case." Crawford v. Astrue, 586 F.3d 1142, 1153 (9th Cir. 2009). The attorney's fee award is paid by the claimant out of the past-due benefits awarded; the Commissioner is not responsible for payment[1] Gisbrecht, 535 U.S. at 802.

         A court reviewing a request for attorney 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, e.g., Fintics v. Colvin, 3:10-cv-01352-HU, 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. Although not a definitive list of factors, in testing the fee agreement for reasonableness I must consider the character of the representation, the results achieved, delay caused by the attorney, and the amount of time spent on the case. 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 1151; 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 noncontingency work as an aid in considering reasonableness of requested fees).

         Pursuant to their agreement, Binder & Binder requests a fee equal to twenty-five percent of the past-due benefits Ms. Coulon was awarded. Jones Decl. [25] Ex. 1. Binder & Binder justifies this award by accounting for 36.6 hours that were spent on this case. This equates to an average hourly rate of $669.02. Binder & Binder did not provide the rate it normally charges for noncontingent-fee cases, nor did it propose a multiplier for contingency work. It did, however, list a rate of $190.28 per hour, which is the statutory maximum for attorney fees under the EAJA. Jones Decl. [25] Ex. 2.

         As a preliminary matter, I find that Binder & Binder achieved a favorable result for Ms, Coulon and that there were no issues concerning the character of the representation or any delay caused by counsel. Although this case was remanded prior to a responsive briefing by the Commissioner, I also find that the time spent on this case was reasonable. But, although I may consider the risk inherent in contingency representation, Binder & Binder has failed to carry its burden of demonstrating any risk that was particular to this case. Crawford, 586 F.3d at 1153. Binder & Binder states only that "most contingency agreements in Social Security claims set the contingency rate at 25 percent," and "there is no suggestion of fraud or overreaching" in this case. Mot. [24] at 2. This is not a sufficient showing to justify the reasonableness of Binder & Binder's request.

         Because Binder & Binder has not provided a rate it charges for noncontingent-fee cases or justification for a contingency premium, I turn to the lodestar method as an aid in assessing the reasonableness of the requested award. See Crawford, 586 F.3d at 1151. In its petition, Binder & Binder states that Charles E. Binder spent 2.8 hours on this case and Daniel S. Jones spent 36.6 hours on this case. Jones Decl. [25] at 3-4. Mr. Jones had between four and six years of experience as a practicing attorney during the pendency of Ms. Coulon's case before this Court. See Jones Decl. [25] at 4. Although no dates are provided, it appears that Mr. Binder has extensive experience as an attorney litigating Social Security matters. The mean noncontingency rate for attorneys in Portland, Oregon, for attorneys with between four and six years of experience is $249 per hour; the mean rate for attorneys with more than thirty years of experience is $413 per hour. Oregon State Bar, 2017 Economic Survey, /_docs/resources/Econsurveys/17EconomicSurvey.pdf. These rates would result in a fee of $9, 572.60 for the hours expended in this case. Comparing that amount, which is based on a noncontingency rate, to the amount requested in this case results in a multiplier of 2.56 for contingency work. I find this multiplier to be a reasonable method of accounting for the risks inherent in contingent-fee cases.


         Because Binder & Binder has failed to demonstrate any risk particular to this case, I find that a multiplier of 2.56 is appropriate to account for the contingent nature of its attorney fees in representing Ms. Coulon before this Court. Therefore, I grant Binder & Binder the full amount it has shown to be reasonable: $190.28 per hour multiplied by the 2.56 risk premium multiplied by the 36, 6 hours spent on this case, less the EAJA fee of $6, 964.25 already awarded, for a total of $10, 864.22. My September 5, 2017, Order [27] granting attorney fees under the EAJA, which was duplicative of Judge King's June 3, 2016, Order [23] granting the same fees, is stricken.

         IT IS SO ORDERED.


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