Pierce v. Astrue

Filing 55

ORDER that Plaintiff's Attorney's 54 Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) is granted in the amount of $23,686.65. Counsel shall refund the previously awarded EAJA fee of $17,789.51 to Plaintiff. Signed by Judge Neil V Wake on 08/22/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security Administration,
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Defendant.
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Anett C. Pierce,

No. CV-06-02666-PHX-NVW
ORDER

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Before the Court is Plaintiff’s Attorney’s Motion for an Award of Attorney Fees

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Under 42 U.S.C. § 406(b) (Doc. 54). Defendant has not responded to Plaintiff’s motion.

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I.

Background

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Plaintiff filed an application for Social Security Disability benefits on July 10, 2003,

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which was denied initially and upon reconsideration. An administrative law judge affirmed

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the denial of benefits, and this court affirmed the administrative law judge’s decision on

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October 26, 2007. The Ninth Circuit reversed and remanded the case for an award of

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benefits. On remand, Plaintiff was awarded $94,746 in past due benefits, $22,144.50 of

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which was withheld for payment of attorney fees (Doc. 54-1). On August 4, 2010, Plaintiff

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sought $19,861.30 in attorney’s fees and costs under the Equal Access to Justice Act (EAJA)

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(Doc. 44). The Court awarded $17,789.51 in fees and $805.00 in costs, for a total EAJA

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award of $18,594.51 (Doc. 51). Plaintiff’s counsel now seeks an award of $23.686.65 under

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42 U.S.C. § 402(b) (Doc. 54).

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II.

Discussion

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Plaintiff retained counsel under a contingency fee agreement providing for payment

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to counsel of twenty-five percent of the past due benefits awarded to Plaintiff. Under 42

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U.S.C. § 406(b)(1)(A), “[w]henever a court renders a judgment favorable to a claimant ...

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who was represented before the court by an attorney, the court may determine and allow as

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part of its judgment a reasonable fee for such representation, not in excess of 25 percent of

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the total of the past-due benefits[.]”

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contingent-fee agreements” that fall within the twenty-five percent statutory maximum, the

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Court does “review for reasonableness fees yielded by those agreements.” Gisbrecht v.

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Barnhart, 535 U.S. 789, 808 (2002). In determining whether the fee sought is “reasonable

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for the services rendered[,]” id. at 807, the Court may consider the character of the

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representation, the results achieved, performance, delay, and whether the benefits were

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proportionate to the time spent on the case. Crawford v. Astrue, 586 F.3d 1142, 1151 (9th

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Cir. 2009). A reduction in fees may be warranted if the “benefits are large in comparison to

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the amount of time counsel spent on the case[,]” or the attorney “is responsible for delay ...

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so that the attorney will not profit from the accumulation of benefits during the pendency of

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the case in court.” Gisbrecht, 535 U.S. at 808.

Although Section 406(b) “does not displace

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Here, Plaintiff's counsel requests a § 406(b) award in the amount of $23,686.65.

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Counsel performed 104.65 hours of work, which results in an hourly rate of $226.35. This

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rate is not presumptively unreasonable; indeed, courts have found much higher hourly rates

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to be reasonable. See, e.g., Grunseich v. Barnhart, 439 F. Supp. 2d 1032, 1035 (C.D. Cal.

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2006) (awarding $600 hourly rate). In light of the contingency fee agreement, and

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accounting for the risk inherent in contingency fee arrangements, the proportionality of the

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award, and counsel’s successful representation of Plaintiff, the Court finds the amount sought

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is reasonable. The Court will award Plaintiff $23,686.65 under § 406(b), which will be offset

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by the previously awarded EAJA fee. See Gisbrecht, 535 U.S. at 796 (noting that although

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Congress permits fee awards under both the EAJA and § 406(b), “the claimant’s attorney

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must refund to the claimant the amount of the smaller fee”).

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IT IS THEREFORE ORDERED that Plaintiff’s Attorney’s Motion for an Award of

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Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 54) is granted in the amount of $23,686.65.

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Counsel shall refund the previously awarded EAJA fee of $17,789.51 to Plaintiff.

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DATED this 22nd day of August, 2011.

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