United States District Court, D. Arizona
Bernardo P. Velasco, United States Magistrate Judge
before the Court is Plaintiff's Application for Award of
Attorney's Fees and Costs under 42 U.S.C. Â§406(b) of the
Social Security Act with accompanying exhibits. (Doc. 18).
Defendant has filed a Response in opposition (Doc. 19). For
the following reasons, the Court grants Plaintiff's
Motion in part.
filed this action in November 2015, seeking review of the
denial of his application for benefits under the Social
Security Act for disability and supplemental security income.
(Doc. 5). Thereafter, the parties stipulated to remand the
matter to the Administrative Law Judge for further
proceedings, and the Court remanded the matter pursuant to
the stipulation. (Docs. 15, 16). Upon remand, Plaintiff was
granted disability benefits.
now seeks attorney's fees in the amount of $12, 155.85
pursuant to 42 U.S.C. § 406(b). The record reflects that
the Court has not previously awarded attorney's fees
pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d).
counsel, Amy Foster, states that “considering the risks
and benefits, the reasonable hourly billing rate for an
attorney with 14 years of legal experience who handles cases
on a contingency basis is in excess of $500.00 per hour. This
rate has been found reasonable by District Courts throughout
the Country.” (Doc. 18-1 at ¶5). Ms. Foster also
indicates that Plaintiff entered a 25% contingency fee
agreement. (Doc. 18-1 at ¶9; see also Doc.
objects to the amount of fees sought given that Ms. Foster
spent only three hours litigating the case in federal court.
(Doc. 19). Defendant points out that “[f]or 3 hours of
work before the district court, a fee of $12, 155.85 would
amount to an hourly rate of $4, 051.95, in a case where the
parties were able to reach a stipulated settlement agreement
for remand without the need for Plaintiff's attorney to
draft an opening brief.” (Id. at 4). Defendant
contends that an award of more than $2, 250.00, i.e., $750.00
per hour, would constitute an improper windfall under §
406(b). Plaintiff did not file a Reply and, thus, has not
objected to the government's position.
406 sets forth “the exclusive regime for obtaining fees
for successful representation of Social Security benefits
claimants.” Gisbrecht v. Barnhart, 535 U.S.
789, 795-96 (2002). Section 406(b), “controls fees for
representation . . .” before the court. Id. at
794. Pursuant to § 40b(b), “[w]henever 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. § 406(b)(1)(A).
record reflects that Plaintiff entered into a contingent-fee
agreement wherein he agreed to pay attorney's fees not to
exceed 25%. (Doc. 18-3). The Supreme Court, when discussing
the term “reasonable fee” as used in §
406(b), concluded that “§ 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. Rather, § 406(b) calls for
court review of such arrangements as an independent check, to
assure that they yield reasonable results in particular
cases.” Gisbrecht, 535 U.S. at 807 (footnote
omitted). The Court also pointed out that “Congress has
provided one boundary line: Agreements are unenforceable to
the extent that they provide for fees exceeding 25 percent of
the past-due benefits.” Id. (citing 42 U.S.C.
§ 406(b)(1)(A)) (footnote omitted). In assessing
reasonableness of the fee sought, district courts should
consider the results achieved and may properly apply a
reduction if the attorney provided substandard representation
or engaged in dilatory conduct in order to increase the
accrued amount of past-due benefits, or if the benefits are
out of proportion to the time spent on the case, thereby
resulting in a windfall to counsel. Crawford v.
Astrue, 586 F.3d 1142, 1148, 1151 (9th Cir. 2009)
(citing Gisbrecht, 535 U.S. at 808) see also
Gisbrecht, 535 U.S. at 808. (the court should
“disallow windfalls for lawyers” (internal
quotation marks and citation omitted)). In making its
assessment, the district court may consider the lodestar
calculation as an aid, if necessary. Crawford, 586
F.3d at 1148. The attorney bears the burden of
establishing that the fee sought is reasonable. Id.
(citing Gisbrecht, 535 U.S. at 807).
applying Gisbrecht, the Ninth Circuit has emphasized
that district courts “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).
Here, the fee agreement between Plaintiff and counsel
provided for a 25% contingency fee consistent with
Gisbrecht. The parties do not dispute that the $12,
155.85 sought by Plaintiff's counsel constitutes 25% of
the past-due amount awarded to Plaintiff.
regard to the reasonableness of the fees sought, Defendant
correctly points out that counsel can only receive fees for
“the attorney's work before a federal court on
behalf of the Social Security claimant in connection with the
action that resulted in past- due benefits.”
Parrish v. Commissioner of Social Sec. Admin., 698
F.3d 1215, 1220 (9th Cir. 2012); cf. Clark v.
Astrue, 529 F.3d 1211, 1215 (9th Cir. 2008) (“the
plain text of § 406(b) limits only the award of
attorney's fees for representation of a Social Security
claimant before the district court . . . .”).
Plaintiff's counsel has submitted a time record
indicating that she seeks compensation for time spent on the
case during the administrative proceeding after this Court
remanded the matter. (Doc. 18-2). Counsel's time spent on
the matter in administrative proceedings subsequent to the
remand order does not fall within the ambit of § 406(b).
Cf. Parrish, 698 F.3d at 1220-21. The time record
reflects that Plaintiff's counsel spent 3.0 hours working
on the case before this Court. (18-2 (entries from October 2,
2015 through March 16, 2016)).
instant record, there is no indication of any substandard
performance by Plaintiff's counsel or that she engaged in
any unreasonable delay. Instead, counsel achieved a favorable
result for Plaintiff and should be compensated to recognize
the risks attendant to contingent fee litigation. Although
Plaintiff's counsel states that a fee in excess of
$500.00 per hour is reasonable, she provides no support for
the conclusion that over $4, 000 per hour is a reasonable
amount in this case. Plaintiff's counsel has the burden
to establish the reasonableness of the fees sought.
Gisbrecht, 535 U.S. at 807.
government has asserted that an hourly rate of $750.00 in
this case is reasonable, and Plaintiff has not objected. The
amount suggested by the government is more than double the
$250.00 rate that attorneys practicing disability law in the
District of Arizona are awarded “per hour on Court Long
Term Disability claims.” (Doc. 18-1 at ¶7).
“In cases of this type, the Ninth Circuit sitting
en banc has approved effective hourly rates of $519,
$875, and $902 without finding that they are
unreasonable.” Young v. Colvin, 2014 WL
590335, *1 (D. Ariz. Feb. 14, 2014) (citing
Crawford, 586 F.3d at 1153). Thus, upon
consideration of the Gisbrecht reasonableness
factors, in addition to the risk involved in the contingency
fee arrangement in this case, the Court concludes that a fee
award of $2, 250.00 is reasonable in this case. Any greater
award would result in an improper windfall to Plaintiffs
counsel contrary to Gisbrecht.