United States District Court, D. Oregon
Michael H. Simon United States District Judge
Commissioner conceded error in this case and on December 10,
2014, the Court remanded this case for further proceedings.
On January 26, 2015, the Court granted Plaintiff's
unopposed application for attorney's fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, in the amount of $3, 533.20.
counsel now moves for attorney's fees of $11, 242.70
pursuant to 42 U.S.C. § 406(b). This figure represents
21 percent of Plaintiff's retroactive benefits.
Plaintiff's counsel requests an additional payment from
Plaintiff of $7, 709.50, which represents the requested $11,
242.70 less the EAJA fees of $3, 533.20 already received.
Although Defendant does not object to the proposed award,
this Court must perform an independent review to ensure that
the award is reasonable. Gisbrecht v. Barnhart, 535
U.S. 789, 807 (2002). For the following reasons,
Plaintiff's counsel's motion for fees is granted.
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, 535 U.S. at 807. 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 33-2.
Plaintiff agreed to pay attorney's fees not to exceed 25
percent of the back benefits awarded, which is within the
statutory maximum and is greater than the amount
Plaintiff's counsel seeks in this motion.
Court next considers the appropriate factors to determine
whether a downward adjustment is necessary in this case, and
finds that no downward adjustment is warranted.
Plaintiff's counsel achieved good results for Plaintiff
(the Commissioner conceded error after Plaintiff filed her
opening brief before this Court and benefits were awarded
upon remand), the representation of Plaintiff was
professional, there was no significant delay attributable to
Plaintiff's counsel, and the fee was in proportion to the
time spent on the case and would not result in a windfall to
Plaintiff's counsel. Plaintiff's counsel spent
approximately 20.05 hours on the case. The effective hourly
rate for the requested fee is, therefore, approximately
$560.73, which is below effective hourly rates that 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).
counsel's motion for attorney fees pursuant to 42 U.S.C.
§ 406(b) (ECF 33) is GRANTED. Plaintiff's counsel is
entitled to $11, 242.70 in § 406(b) fees, representing
21 percent of Plaintiff's retroactive benefits recovery.
When issuing the section 406(b) check for payment to
Plaintiff's attorney, the Commissioner is directed to
subtract the $3, 533.20 previously awarded under EAJA and