United States District Court, D. Oregon
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
August 3, 2015, the Court remanded this case for further
proceedings, based on the stipulation of the parties. On
November 5, 2015, the Court granted Plaintiff's
stipulated application for attorney's fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, in the amount of $2, 011.56.
counsel now moves for attorney's fees of $7, 687.50
pursuant to 42 U.S.C. § 406(b). If awarded the requested
§ 406(b) attorney's fees, Plaintiff's counsel
will reimburse Plaintiff the $2, 011.56 EAJA fee award.
Plaintiff's retroactive benefits totaled $51, 150.
Accordingly, the requested § 406(b) attorney's fees
represent approximately 15 percent of Plaintiff's
retroactive benefits. Defendant does not object to the requested
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 v. Barnhart, 535 U.S. 789,
807 (2002). 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).
Court begins by analyzing whether the fee request is timely.
Local Rule 4000-8 provides, in relevant part:
Plaintiff shall submit any application for attorneys'
fees under 42 U.S.C. § 406(b) within 60 days after
plaintiff's federal court attorney has received all of
the Notices of Award which are necessary to calculate the
total amount of retroactive benefits payable. An application
submitted beyond the 60-day period will be deemed timely only
upon a showing of good cause for the delay.
Plaintiff passed away during the adjudication of his social
security claim, Plaintiff did not receive the usual Notice of
Award that triggers the time period for filing a fee petition
under § 406(b). Plaintiff instead received other types
of notices. He received an “Important
Information” notice from the Social Security
Administration relating to his benefits on January 25, 2019.
This notice stated that he was entitled to benefits, a
portion of his benefits must be withheld to pay
attorney's fees, the Administration “cannot
withhold more than 25 percent” for attorney's fees,
and $12, 787.50 was withheld. No. other information regarding
Plaintiff's retroactive benefits was included in this
notice. Plaintiff's counsel filed a motion for §
406(b) fees based on this notice on April 4, 2019. He
calculated the total amount of retroactive benefits by
calculating that $12, 787.50 was 25 percent of $51, 150.
Plaintiff's counsel withdrew the motion after consulting
with Defendant's counsel.
received another “Important Information” notice
on August 16, 2019, which included the amount of past due
benefits ($51, 150) awarded to Plaintiff. Plaintiff's
counsel filed the pending motion, arguing that it was this
notice that contained the information necessary under Local
Rule 4000-8. Counsel argues in the alternative that Local
Rule 4000-8 does not “strictly apply” in this
case because no “Notice of Award” was issued by
the Social Security Administration and only “Important
Information” notices were issued. Finally,
Plaintiff's counsel argues that even if his fee
application is considered untimely under Local Rule 4000-8,
there is good cause to deem the application timely. Counsel
asserts that good cause exists because he first delayed
filing waiting to receive a Notice of Award and he then
withdrew his previous motion and delayed filing until
Plaintiff received a notice that stated the amount of
Court notes that the first notice contained sufficient
information to “calculate” the total retroactive
benefits. Regardless, given the unique circumstances and
unusual notices involved in this case, the fee application is
timely or deemed timely.
prescribed by Gisbrecht and Crawford, the
Court begins its substantive analysis by reviewing the
contingency fee agreement between Plaintiff and his counsel.
ECF 26-3. Plaintiff agreed to pay attorney's fees not to
exceed 25 percent of the back benefits awarded. Here, the
requested fee award is approximately 15 percent, well under
the statutory maximum. When combined with the agency fee
award, it equals the amount agreed upon in the fee agreement.
Court next considers the appropriate factors to determine
whether a downward adjustment is necessary in this case.
Plaintiff's counsel achieved good results for Plaintiff
(a stipulated remand for further proceedings), the
representation of Plaintiff was professional, and there was
no delay attributable to Plaintiff's counsel. The fee
award also will not result in a windfall to Plaintiff's
counsel. Plaintiff's counsel worked 10.6 hours, and thus
the effective hourly rate is approximately $725. The Court
notes that effective hourly rates exceeding $1, 000 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 d ...