United States District Court, D. Arizona
Paula K. Jeffries, Plaintiff,
Carolyn W. Colvin, Commissioner, Social Security Administration, Defendant.
A. BOWMAN, Magistrate Judge.
before the court is the plaintiff's counsel's motion
for attorney's fees pursuant to 42 U.S.C. Â§ 406(b), filed
on March 27, 2016. (Doc. 47)
Judge Leslie A. Bowman presides over this action pursuant to
28 U.S.C. Â§ 636(c). (Doc. 19)
plaintiff filed this action for review of the final decision
of the Commissioner for Social Security pursuant to 42 U.S.C.
Â§ 405(g). (Doc. 1) In an order issued on December 6, 2013,
this court reversed the Commissioner's final decision and
remanded for further administrative proceedings. (Doc. 41) On
March 5, 2014, this court granted the plaintiff's motion
for attorney's fees in the amount of $6, 000 pursuant to
the Equal Access to Justice Act (EAJA), 28 U.S.C. Â§ 2412(d).
(Doc. 46) The Commissioner subsequently awarded the claimant
benefits. (Doc. 48, p. 3)
pending motion, the plaintiff's counsel, Patrick R.
McNamara, moves for an award of $70, 000 in attorney's
fees pursuant to a contingent-fee agreement he had with the
claimant. (Doc. 48); (Doc. 48-1, pp. 1-2)
Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817
(2002), the Supreme Court considered the interplay between
social security contingent-fee agreements and the dictates of
42 U.S.C.A. Â§ 406(b)(1)(A), which reads in pertinent part as
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court 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....
42 U.S.C.A. Â§ 406(b)(1)(A).
Court held "that Â§ 406(b) does not displace
contingent-fee agreements." Id. at 808, 1829.
"[I]nstead, Â§406(b) instructs courts to review for
reasonableness fees yielded by those agreements."
Id. at 809, 1829.
considering a fee request, the court should start with the
agreement and then test it for reasonableness. Id.
at 808, 1828. Recovery may be reduced because of the quality
of the representation, because of unreasonable delay, or
because "the benefits are large in comparison to the
amount of time counsel spent on the case." Id.
In the pending motion, the plaintiff's counsel, Patrick
R. McNamara, moves for an award of $70, 000 pursuant to the
contingent-fee agreement he had with the claimant. (Doc. 48);
(Doc. 48-1, pp. 1-2) The actual agreement provides for an
award of 25 percent of past-due benefits, which would result
in an award of $86, 693.75. (Doc. 48, pp. 8-10) Counsel,
however, asks for an award of $70, 000 which is approximately
20.2 percent of the claimant's past-due benefit award of
$346, 775. Id. Counsel notes that this action has
been before the district court three times in total and that
three EAJA awards of $4, 535.39, $10, 000, and $6000
respectively have already been granted. (Doc. 48, p. 15)
Counsel acknowledges that the $70, 000 award must be offset
by the EAJA fees already paid. (Doc. 48)
further explains that the award of $70, 000 will result in an
effective hourly rate of $604.49, because a total of 115.8
hours of attorney time has been spent on this case. (Doc. 48,
p. 12) He argues this rate is reasonable considering the
contingent nature of the work, the rates approved by courts
in the past, and his non-contingent fee rate, which is $400
per hour. (Doc. 48)
review of the case file, the court finds that counsel's
prosecution of this action fell within the broad range of
competent representation. The court finds no reason to reduce
the award based on the quality of the representation. Neither
did counsel engage in unreasonable delay. The size of the
award is large, but the Ninth Circuit has approved effective
hourly rates of $519, $875, and $902 without finding that
they are unreasonable. See Crawford v.
Astrue, 586 F.3d 1142, 1153 (9th Cir. 2009) (Clifton,
J., concurring in part and dissenting in part).
Commissioner notes that the plaintiff's counsel, Mr.
McNamara, entered this case rather late in the litigation and
that most of the attorney hours were expended by the
claimant's prior counsel, Phillip Verrette, who is now
deceased. (Doc. 49) Mr. McNamara acknowledges this fact and
states for the record that he will be sharing his fee with