Stamper v. Astrue

Filing 33

ORDER granting Plaintiff's 30 Motion for Attorney Fees in the amount of $9,732.68; Counsel shall refund to plaintiff $5,800.00, the amount previously awarded under the EAJA. Signed by Judge Frederick J Martone on 10/9/09.(REW, )

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) ) Janiece D. Stamper, No. CV-07-1260-PHX-FJM ORDER The court has before it plaintiff's motion for attorney's fees pursuant to 42 U.S.C. 406(b) (doc. 30), and defendant's response (doc. 32). On June 27, 2007, plaintiff filed a complaint for judicial review of the Commissioner's determination that she is not eligible for disability benefits under the Social Security Act. On June 11, 2008, we concluded that the decision was not supported by substantial evidence in the record and remanded the case for immediate payment of benefits (doc. 25). On remand, the Commissioner awarded past due benefits in the amount of $72,930.72. The Commissioner withheld 25% of that award, or $18,232.68, as a fund from which fees under both 42 U.S.C. 406(a) (fees incurred at administrative level) and 406(b) (fees incurred upon judicial review) may be paid. Counsel acknowledges that he has already received $8,500.00 under 406(a) for his administrative work. After our remand, and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuant to a stipulation between the parties, we awarded plaintiff $5,800.00 in attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412(d) (doc. 29). Plaintiff's counsel now seeks fees pursuant to 42 U.S.C. 406(b) in the amount of $9,732.68. Under 406(b), when a claimant obtains a favorable judgment under the Social Security Act, "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." 42 U.S.C. 406(b)(1)(A). The court provides "an independent check" to assure that contingency fee agreements between Social Security claimants and their lawyers will "yield reasonable results in particular cases." Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S. Ct. 1817, 1828 (2002). Here, plaintiff retained counsel under a contingency-fee agreement whereby plaintiff agreed to pay counsel 25% of any past-due benefits that counsel recovered. Section 406(b) "does not displace contingent-fee agreements within the statutory ceiling," Id. at 808, 122 S. Ct. at 1829. Instead, we will "review for reasonableness fees yielded by those agreements." Id. Counsel now seeks 406(b) fees in the amount of $9,732.68 for 37.8 hours of work performed in the district court, resulting in an hourly rate of $257.48. Given the risk inherent in a contingency fee arrangement, as well as the Commissioner's recognition that nothing suggests that counsel should be deprived of the benefit of his bargain with plaintiff, Response at 4, we conclude that this hourly rate is within the bounds of reasonableness. IT IS ORDERED GRANTING plaintiff's motion for an award of attorney's fees in the amount of $9,732.68 (doc. 30). Counsel shall refund to plaintiff $5,800.00, the amount previously awarded under the EAJA.1 DATED this 9th day of October, 2009. Congress permits fee awards under both the EAJA and 406(b), "but the claimant's attorney must refund to the claimant the amount of the smaller fee." Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822 (quotation omitted). -2- 1

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?