United States District Court, D. Arizona
CHARLES R. PYLE United States Magistrate Judge.
through counsel has filed a Motion for Authorization of
Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 28,
Motion), and counsel's Affidavit in Support (Doc. 29
as supplemented by Doc. 32). Defendant has filed a
Response to the Motion for Award of Attorney Fees. (Doc. 30).
This case is before the Magistrate Judge based on the
parties' consent. (Doc. 12).
February 12, 2013, the Court filed an Order reversing
Defendant's decision denying insurance benefits and
remanding for further proceedings. (Doc. 22, Order). On May
4, 2015, the Court filed an Order granting Plaintiff's
Motion for Award of Attorneys' Fees Pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d), in the amount of $4, 141.28. (Doc. 27, EAJA Order).
counsel now seeks $11, 560 in attorney's fees for
representing Plaintiff on a contingency fee basis. (Doc. 28).
Plaintiff's counsel has submitted with the Motion the
Notice of Change in Benefits (Doc. 28-2), counsel's
summary of billing (Doc. 28-1), Petition for Approval of a
Fee for Representing a Claimant before the Social Security
Administration (Doc. 28-3), counsel's Affidavit (Doc. 29)
and a copy of the attorney fee contract between Plaintiff and
his counsel (Doc. 32). Defendant has filed a Response stating
no position or no objection to the § 406(b) Motion.
(Doc. 30, Response).
retained counsel under a contract with a contingency fee
agreement in which Plaintiff agreed that if he lost at the
ALJ hearing and his “attorney agrees to appeal and I
win my case later, the fee will be twenty-five (25%) of all
past due benefits awarded to my family and me.” (Doc.
32-1, Supplement (emphasis omitted)). Counsel states that
Plaintiff is entitled to $46, 240 in past-due Social Security
disability benefits. (Doc. 29, Affidavit ¶ 4). The
Social Security Administration has withheld $11, 560 for
direct payment of attorney fees (Doc. 28-2) and this amount
constitutes 25% of Plaintiff's past-due benefits. (Doc.
29, Affidavit ¶ 4).
42 U.S.C. § 406(b)(1)(A), when a claimant represented by
counsel has received a favorable judgment, “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[.]” The Court
“review[s] for reasonableness” the fee yielded by
contingency fee agreements. Gisbrecht v. Barnhart,
535 U.S. 789, 808-09 (2002). The Court may consider the
character of the representation, the results achieved,
performance, delay, and whether the benefits are in
proportion to the time spent on the case. Crawford v.
Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009).
counsel claims 53.67 hours of service on this case in the
federal district court. (Doc. 29, Affidavit ¶ 10; Doc.
28-1, Summary of Billings). This results in an hourly rate of
approximately $214 based on the $11, 560 withheld amount. The
Court has considered counsel's successful representation
of Plaintiff, any delay in the proceedings, the contingency
fee agreement, and the risk inherent in a contingency fee
Court has previously discussed the errors committed by the
Appeals Council and the Administrative Law Judge in finding
that the government was not substantially justified in
defending the administrative decision in this case. (Doc. 27,
EAJA Order). The ALJ's decision was unsupported by
substantial evidence and based on legal error given his
failure to state legally sufficient reasons to support the
decision to deny benefits. (Id.).
counsel did not seek any extension of time regarding the
filing of his legal memorandum in the proceedings before this
Court. The record provides no reason for a reduction in the
requested fees award on the basis of the character of
counsel's representation, the results achieved, or delay
in the proceedings attributable to Plaintiff's counsel.
record does not suggest any reason to question the propriety
of the contingency fee agreement in this case. There is no
showing that the fees requested exceed the twenty-five
percent cap. The Court is mindful of the contingent-fee
nature of this case and the risk imposed on counsel in
agreeing to represent Plaintiff under such terms.
district court may reduce a § 406(b) award if
“benefits ... are not in proportion to the time spent
on the case.” Crawford, 586 F.3d at 1151
(citing Gisbrecht, 535 U.S. at 808). “If the
benefits are large in comparison to the amount of time
counsel spent on the case, a downward adjustment is ... in
order.” Gisbrecht, 535 U.S. at 808. The fee
sought must be reasonable “for the services
rendered.” Id. at 807. The reviewing court
should not allow a “windfall.” Id. at
noted in Gisbrecht, “§ 406(b) does not
displace contingent-fee agreements as the primary means by
which fees are set for successfully representing Social
Security benefits claimants in court.”
Gisbrecht, 535 U.S. at 807 However, “§
406(b) calls for court review of such arrangements as an
independent check, to assure that they yield reasonable
results in particular cases.” Id. (footnote
counsel states in his affidavit that his regular
non-contingent hourly rate is $225. (Doc. 29, Affidavit
¶ 6). The benefits awarded are in proportion to the time
spent on the case and the requested attorney fees. The Court,
in its discretion and taking into account counsel's risk
involved in the contingency fee arrangement in this case,
finds that counsel's request for $11, 560 is a reasonable
fee amount. Plaintiff's attorney's Motion for
attorney fees will be granted. Plaintiffs counsel shall
refund to Plaintiff the lesser of the fees awarded under 42
U.S.C. § 406(b) and the Equal Access to Justice Act.
IT IS ORDERED that Plaintiffs Attorney's Motion for
Authorization of Attorney Fees Pursuant to 42 U.S.C. §
406(b) (Doc. 28) is granted to the extent ...