Jolley v. Astrue

Filing 42

ORDER: IT IS ORDERED that Plaintiff's Attorney's Motion for an Award of Attorney Fees under 42 U.S.C. § 406(b) (Doc. 40 ) is GRANTED in the amount of $31,096.50. IT IS FURTHER ORDERED that Plaintiff's counsel must refund the lesser of the EAJA fee award and the § 406(b) fee award to Plaintiff. Signed by Senior Judge James A Teilborg on 7/5/2016. (KAL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tamra Jolley, No. CV-12-02447-PHX-JAT Plaintiff, 10 11 v. 12 ORDER Carolyn W Colvin, 13 Defendant. 14 15 Pending before the Court is Plaintiff Tamra Jolley (“Plaintiff”)’s motion for 16 attorneys’ fees pursuant to 42 U.S.C. § 406(b). (Doc. 40). The Court now rules on the 17 motion. 18 I. Background 19 On October 6, 2010, an Administrative Law Judge (“ALJ”) denied Plaintiff’s 20 request for social security benefits. (Docs. 1 at 2; 9 at 2). The Social Security Appeals 21 Council denied review of the ALJ’s decision on September 24, 2012. (Docs. 1 at 2; 9 at 22 2). After exhausting her administrative appeals, Plaintiff filed this lawsuit seeking 23 judicial review of the ALJ’s decision. (Docs. 1 at 2; 9 at 2). On appeal, Defendant 24 conceded error and asked this Court to remand to the agency for further proceedings. 25 (Docs. 17, 18). Plaintiff opposed the motion, instead seeking a remand for an immediate 26 award of benefits. (Doc. 21). After ordering additional briefing, the Court granted 27 Defendant’s motion to remand the claim for further proceedings. (Doc. 32 at 11). After 28 additional proceedings, the ALJ determined that Plaintiff is disabled. (Doc. 40-1 at 2–6). 1 On May 30, 2014, Plaintiff moved for attorneys’ fees and costs under the Equal 2 Access to Justice Act (“EAJA”). (Doc. 34). On August 27, 2015, the Court awarded 3 Plaintiff her requested attorneys’ fees and costs pursuant to the EAJA. (Doc. 39). On 4 October 19, 2015, Plaintiff filed the pending motion for attorneys’ fees under § 406(b). 5 (Doc. 40). 6 II. Analysis 7 Section 406(b) provides that whenever the Court renders a favorable judgment to a 8 social security claimant, the Court can award reasonable attorneys’ fees for representation 9 of the claimant. § 406(b)(1)(A). The reasonable fee cannot exceed twenty-five percent of 10 the total past-due benefits awarded to the claimant. Id. The fee is payable out of, and not 11 in addition to, the amount of the past-due benefits. Id. Section 406(b) “does not displace 12 contingent-fee agreements as the primary means by which fees are set for successfully 13 representing Social Security benefits claimants in court. Rather, § 406(b) calls for court 14 review of such arrangements as an independent check, to assure that they yield 15 reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). 16 To that end, “Congress has provided one boundary line: Agreements are unenforceable to 17 the extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id. 18 Therefore, the Court must ensure the fee is 1) reasonable, and 2) limited to 25 percent of 19 past-due benefits. Id. 20 Moreover, the Court must be sure to “respect the primacy of lawful attorney-client 21 fee agreements.” Crawford v. Astrue, 586 F.3d 1142, 1150 (9th Cir. 2009) (en banc) 22 (internal quotations omitted). While reviewing this agreement, the Court must still test 23 the resulting award for reasonableness. Id. at 1149. In other words, “the district court 24 must first look to the fee agreement and then adjust downward if the attorney provided 25 substandard representation or delayed the case, or if the requested fee would result in a 26 windfall.” Id. at 1151. When determining reasonableness, the Court should consider the 27 following non-exhaustive factors: the character of the representation, the results achieved, 28 performance, delay, whether the benefits were proportionate to the time spent on the case, -2- 1 and, as an aid if necessary, the lodestar calculation. Id. 2 Plaintiff and her counsel had a contingent-fee agreement in this case typical of fee 3 agreements in disability benefit cases. Specifically, the contingent-fee agreement 4 provides that “attorney fees for Federal Court work will be equal to the greater of 1) 25% 5 of all past due benefits including benefits payable to spouse, children, and others, without 6 regard to the maximum statutory allowance . . . or 2) fees awarded pursuant to the 7 [EAJA] . . . .” (Doc. 40-1 at 9). Plaintiff was awarded $124,386.00 in past due benefits. 8 (Id. at 1–4). Twenty-five percent of this award is $31,096.50. (Id.) Plaintiff’s counsel 9 requested the full twenty-five percent amount, (Doc. 40 at 14), which the Government 10 does not oppose, (Doc. 41) 11 Given the factors outlined in Crawford, the Court finds the contingent-fee 12 agreement in this case to be reasonable, and thus, will award Plaintiff’s counsel 13 attorneys’ fees in the amount of $31,096.50 pursuant to § 406(b). See 586 F.3d at 1151. 14 Because Plaintiff was also awarded EAJA fees, (Doc. 39), Plaintiff’s counsel must refund 15 the lesser of these two fee awards to Plaintiff, see Gisbrecht, 535 U.S. at 796. 16 III. Conclusion 17 Based on the foregoing, 18 IT IS ORDERED that Plaintiff’s Attorney’s Motion for an Award of Attorney 19 20 21 22 Fees under 42 U.S.C. § 406(b) (Doc. 40) is GRANTED in the amount of $31,096.50. IT IS FURTHER ORDERED that Plaintiff’s counsel must refund the lesser of the EAJA fee award and the § 406(b) fee award to Plaintiff. Dated this 5th day of July, 2016. 23 24 25 26 27 28 -3-

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