United States District Court, D. Oregon, Portland Division
ORDER ON ATTORNEY FEES
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff Steven M.'s Unopposed Motion
for Attorney fees pursuant to 42 U.S.C. § 406(b).
Although Plaintiff is the claimant in this case, the real
party in interest to this motion is his attorney, George J.
Wall ("Wall"). The Commissioner does not oppose the
motion, but merely acts in a manner similar to "a
trustee for the claimant." Gisbrecht v.
Barnhart, 53 5 U.S. 789, 798 (2002). Having reviewed the
proceedings below and the amount of fees sought, the court
concludes that Wall is entitled to fees under Section 406(b)
in the amount of $24, 000.
protectively filed his application for disability insurance
benefits on February 27, 2014, alleging disability beginning
December 31, 2009. The claims were denied initially and on
reconsideration. On May 12, 2016, the AL J issued an
unfavorable decision finding that Plaintiff was not disabled
under the Act. The Appeals Council denied Plaintiffs request
August 30, 2017, Plaintiff filed a Complaint in this court
seeking review of the Commissioner's final decision. On
December 20, 2018, the court issued Findings and
Recommendation recommending that the ALJ's decision be
reversed and remanded for further administrative proceedings.
The Findings and Recommendation was adopted by Judge Marco A.
Hernandez on February 8, 2019. On remand, Plaintiff was
awarded retroactive benefits, finding him disabled as of May
19, 2013. (Pl.'s Mot. at 2 & Ex. A, ECF No. 44.).
April 18, 2019, Plaintiff was awarded attorney fees in the
amount of $6, 810, 71 under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d). (Order, ECF No.
43.) On August 19, 2019, Plaintiff filed the instant petition
seeking attorney fees under Section 406(b) in the amount of
$24, 000, less the amounts previously received by Plaintiffs
counsel under the EAJA. The Commissioner does not oppose the
entering a judgment in favor of a Social Security claimant
who was represented by counsel, a court "may determine
and allow as part of its judgment a reasonable fee for such
representation, not in excess of twenty-five percent of the
total of the past-due benefits to which the claimant is
entitled by reason of such judgment." 42 U.S.C. §
406(b)(1)(A). The "[twenty-five percent] cap in §
406(b)(1)(A) applies only to fees for court representation,
and not to the aggregate fees awarded under" 42 U.S.C.
§§ 406(a) and (b) for both the administrative
agency stage and court stage of the representation.
Culbertson v. Berryhill, 139 S.Ct. 517, 522 (2019).
An award of fees under § 406(b) is paid from
claimant's past due benefits, and an attorney receiving
such an award may not seek any other compensation from the
claimant. Gisbrecht v. Barnhart, 535 U.S. 789, 796-.
807(2002). Accordingly, when a court approves both an EAJA
fee and a § 406(b) fee payment, the claimant's
attorney must refund to the claimant the amount of the
smaller of the two payments. Id.
Gisbrecht, the court must first examine the
contingency fee agreement to determine whether it is within
the statutory 25 percent cap. Id. at 800. The court
also must '"review for reasonableness fees yielded
by [contingency fee] agreements.'" Crawford v.
Astrue, 586 F.3d 1142, 1152 (9th Cir. 2009) (en
banc) (quoting Gisbrecht, 535 U.S. at 808)). As
set forth in Crawford, the court must apply the
following factors: (1) the character of the representation,
(2) the results achieved, (3) any delay attributable to the
attorney requesting the fee, (4) whether the benefits of the
representation were out of proportion with the time spent on
the case, and (5) the risk assumed by counsel in accepting
the case. Id. at 1151-52.
the terms of the contingent-fee agreement between Plaintiff
and Wall are within the statutory limits of § 406(b).
The $24, 000 in attorney fees Wall seeks do riot exceed 25
percent of the past due benefits awarded to Plaintiff.
(Pl.'s Mot. at 3 & Ex. C, ECF No. 44.) Thus, the
terms of this agreement are within the statute's limit.
court has reviewed the record in the case, the motion, and
the supporting materials including the award of benefits, the
fee agreement with counsel, and the recitation of
counsel's hours and services. Applying the standards set
by Crawford, the court finds the requested fees
reasonable. There is no indication that Wall was either
ineffective or dilatory, and he achieved a favorable result
for Plaintiff. Furthermore, the amount of fees requested is
not out of proportion to the work performed by Wall, and the
benefits are not so large in comparison to the amount of time
counsel spent that a reduction of the fees requested is
justified. Finally, Wall does not assert any risks unique to
this case, and the court identifies none. Wall does not seek
an adjustment to the requested fee based on risk factors and
the court concludes no such adjustment is warranted. In
short, after applying the Gisbrecht factors, as
interpreted by Crawford, the court finds that
Plaintiffs counsel has demonstrated that a 25 percent fee is
reasonable for this case.
these reasons, Plaintiffs Unopposed Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (ECF No. 44) is GRANTED
and Wall is awarded $24, 000.00 in attorney fees. In light of
the $6, 810.71 in EAJA fees previously awarded, the
Commissioner is directed to send the send the balance of $17,
189.29, less any applicable processing or user fees as