United States District Court, D. Oregon, Eugene Division
DENAK. COULON, Plaintiff,
NANCY BERRYHILL, Commissioner of Social Security, Defendant.
OPINION AND ORDER
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. . 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 .
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 . After remand, the Commissioner found
Ms. Coulon disabled within the meaning of the Social Security
Act as of December 18, 2008. Jones Decl.  Ex. 3 at 2.
This determination resulted in the award of $97, 945.00 for
past-due Social Security benefits. Id. at 3.
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. . 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
. I now consider Binder & Binder's motion for
attorney fees under § 406(b)(1).
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
Gisbrecht, 535 U.S. at 802.
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).
to their agreement, Binder & Binder requests a fee equal
to twenty-five percent of the past-due benefits Ms. Coulon
was awarded. Jones Decl.  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. 
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.  at 2. This is not
a sufficient showing to justify the reasonableness of Binder
& Binder's request.
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.  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.  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, https://www.osbar.org
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.
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 
granting attorney fees under the EAJA, which was duplicative
of Judge King's June 3, 2016, Order  granting the
same fees, is stricken.