Saunders v. Astrue

Filing 52

ORDER granting Plaintiff's 49 Motion for Attorney Fees in the amount of $29,843.25. Signed by Judge David G Campbell on 5/1/12. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marvin A. Saunders,
Plaintiff,

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ORDER

v.

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No. CV08-0595-PHX-DGC

Michael Astrue, Commissioner of the
Social Security Administration,

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Defendant.

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Plaintiff’s attorney has filed a motion for an award of attorneys’ fees pursuant to

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42 U.S.C. § 406(b). Doc. 49. The motion is fully briefed. Docs. 49, 50, 51. The Court

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will grant the motion.

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I.

Background.

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On March 27, 2008, Plaintiff filed a request for judicial review of Defendant’s

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finding that Plaintiff was not disabled under the Social Security Act and was not entitled

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to Disability Insurance Benefits. Doc. 1. On September 16, 2009, the Court affirmed

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Defendant’s decision. Doc. 20. Plaintiff appealed to the Ninth Circuit, and on May 12,

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2011, the Ninth Circuit remanded the matter to this Court for further proceedings.

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Doc. 31-1. On August 25, 2011, the Court remanded the matter to Defendant for an

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award of benefits. Doc. 38.

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II.

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Legal Standard.
Under 42 U.S.C. § 406(b)(1)(A), “[w]henever a court renders a judgment

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favorable to a claimant . . . who was represented before the court by an attorney, the court

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may determine and allow as part of its judgment a reasonable fee for such representation,

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not in excess of 25 percent of the total of the past-due benefits[.]”

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Section 406(b) “does not displace contingent-fee agreements” that fall within the twenty-

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five percent statutory maximum, the Court does “review for reasonableness fees yielded

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by those agreements.” Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). In determining

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whether the fee sought is “reasonable for the services rendered[,]” id. at 807, the Court

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may consider the character of the representation, the results achieved, performance,

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delay, and whether the benefits were proportionate to the time spent on the case.

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Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009). A reduction in fees may be

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warranted if the “benefits are large in comparison to the amount of time counsel spent on

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the case[,]” or the attorney “is responsible for delay . . . so that the attorney will not profit

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from the accumulation of benefits during the pendency of the case in court.” Gisbrecht,

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535 U.S. at 808.

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III.

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Discussion.

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Plaintiff retained counsel under a contingency fee agreement providing for

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

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Doc. 49-1, at 2-3.

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$29,843.25. Doc. 49, at 6. Counsel performed 106.50 hours of work on Plaintiff’s claim

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before the District Court and the Ninth Circuit, which results in an effective hourly rate of

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$281.00. Id. at 8-9. This rate is not presumptively unreasonable; indeed, courts have

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found much higher hourly rates to be reasonable. See, e.g., Grunseich v. Barnhart, 439

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F. Supp. 2d 1032, 1035 (C.D. Cal. 2006) (awarding a $600 hourly rate). In light of the

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contingency fee agreement, and accounting for the risk inherent in contingency fee

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arrangements, the proportionality of the award, and counsel’s successful representation of

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Plaintiff, the Court finds the amount sought is reasonable.

Plaintiff’s counsel requests a § 406(b) award in the amount of

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Defendant’s only argument in response is that it “is unable to reconcile [Plaintiff’s

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counsel’s] fee requests with the information that [he] provided.” Doc. 50, at 2. During a
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telephone call between the parties’ counsel, Defendant’s attorney objected that the notice

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of award prepared by Defendant did not set forth the total amount of back pay or the

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amount of 25% of the back pay. Doc. 51-1, at 3. When Plaintiff’s counsel explained that

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the fee amount could be calculated from information contain in the notice, Defendant’s

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attorney explained that he does not do the math for Defendant. Id. The Court finds that

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the notice of award (Doc. 49-1, at 5-6) contains enough information to determine the

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amount of the award and the amount of fees due under this motion. Plaintiff’s counsel

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has accurately calculated the amount of back pay resulting from the award. Doc. 51, at 2.

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The Court will award Plaintiff $29,843.25 under § 406(b). Plaintiff’s counsel has

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submitted a separate § 406(a) fee petition for representing Plaintiff at the administrative

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stages of his claim. Because the fee agreement limits fees to a maximum of 25% of all

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past due benefits, Plaintiff’s counsel shall refund any excess to Plaintiff. See Doc. 49,

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at 10.

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IT IS ORDERED that Plaintiff’s attorney’s motion for an award of attorneys’
fees under 42 U.S.C. § 406(b) (Doc. 49) is granted in the amount of $29,843.25.
Dated this 1st day of May, 2012.

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