Schwab v. Colvin

Filing 30

ORDER granting 27 Motion for Attorney Fees under 42 U.S.C. § 406(b) in the amount of $18,923.75. IT IS FURTHER ORDERED that Plaintiff's counsel shall, after receipt of the above-awarded fee, refund to Plaintiff the fee previously awarded under the EAJA, in the amount of $7,402.30. See document for complete details. Signed by Senior Judge James A Teilborg on 8/22/2023. (WLP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kimberly Lynn Schwab,
Plaintiff,

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v.

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Carolyn W Colvin,

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No. CV-15-01081-PHX-JAT
ORDER

Defendant.

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Pending before the Court is Plaintiff’s Attorney’s motion for attorney fees under 42

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U.S.C. § 406(b). (Doc. 27). The government filed a response offering an analysis to assist

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this Court. (Doc. 29). The Court now rules.

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I.

BACKGROUND

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Following denials at the administrative level, Plaintiff filed this action seeking

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judicial review of the Commissioner’s decision. (Doc. 1). After the parties submitted

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briefing, (Docs. 11; 16), the Court entered an order reversing the ALJ’s decision and

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remanding this matter for further administrative proceedings, and the Clerk of the Court

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entered judgment in this case, (Docs. 17; 18). On Plaintiff’s motion, the Court awarded

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Plaintiff $7,402.30 in attorney fees under the Equal Access to Justice Act (“EAJA”)

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(Docs. 23; 26). On remand, an ALJ issued a fully favorable disability decision, finding

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Plaintiff disabled as of May 17, 2011. (See Doc. 27-3 at 3). Thereafter, the Commissioner

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issued a Notice of Award indicating that Plaintiff’s total past-due benefits amounted to

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$181,254.00 and stating that $18,923.75 had been withheld for payment of attorney fees.

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(See id.) (stating that the Commissioner “usually withhold[s] 25 percent of past due

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benefits,” and had withheld $ 18,923.75).
Plaintiff’s counsel now seeks a total fee award of $18,923.75, equal to 25% of

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Plaintiff’s past-due benefits.

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II.

DISCUSSION

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A court entering judgment in favor of a social security claimant represented by

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counsel “may determine and allow as part of its judgment a reasonable fee for such

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representation, not in excess of 25 percent of the total of the past-due benefits to which the

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claimant is entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A). Although

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“[t]he statute does not specify how courts should determine whether a requested fee is

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reasonable,” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009), the Supreme Court

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has made clear that the first step is to respect “the primacy of lawful attorney-client fee

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agreements,” Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002). A court may take a

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downward departure from a requested fee award “if the attorney provided substandard

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representation or delayed the case, or if the requested fee would result in a windfall.”

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Crawford, 586 F.3d at 1151. A court can also “consider the lodestar calculation, but only

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as an aid in assessing the reasonableness of the fee.” Id. (citing Gisbrecht, 535 U.S. at

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808). “Because the SSA has no direct interest” in how the award is apportioned between

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client and counsel, district courts must independently “assure that the reasonableness of the

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fee is established.” Id. at 1149.

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In determining whether fees sought under § 406(b) are reasonable, the Court

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considers the contingent-fee agreement, the character of the attorney’s representation, and

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the result achieved. Gisbrecht, 535 U.S. at 808. Courts may also consider the number of

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hours spent representing the claimant and the lawyer’s normal hourly billing rate for non-

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contingent-fee cases, but this information does not control the reasonableness

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determination. Id. at 808–09. Finally, if a claimant’s attorney receives fees under both the

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EAJA and § 406(b), the attorney must “refund to the claimant the amount of the smaller

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fee.” Id. at 796 (citation omitted).

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Applying the Gisbrecht factors, the fee requested is reasonable here. Plaintiff

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contracted to pay 25 percent of past-due benefits on a contingent fee basis for work

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performed by Plaintiff’s counsel in this action. (Doc. 27-3 at 2). Plaintiff’s counsel seeks

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$18,923.75, or 25% of the past-due amount awarded to Plaintiff. Counsel’s itemization of

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services indicates 36.8 hours of services rendered. (Doc. 27-3 at 4). Based on the hours

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expended, Plaintiff’s counsel’s effective hourly rate for this work is $514.23. This amount

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is in line with effective hourly rates previously approved by the Ninth Circuit. See Young

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v. Colvin, No. CV–11–538–PHX–SMM, 2014 WL 590335, at *2 (D. Ariz. Feb. 14, 2014)

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(citing Crawford, 586 F.3d at 1153) (noting approval of effective hourly rates of $519,

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$875, and $902).

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On the instant record, there is no indication of any substandard performance by

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Plaintiff’s counsel. There is also no indication of substandard performance or undue delay

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in prosecuting Plaintiff’s case. Thus, upon consideration of the Gisbrecht reasonableness

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factors, in addition to the risk involved in the contingency fee arrangement in this case, the

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Court concludes that a fee award of $18,923.75 is reasonable, and will approve an award

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in this amount. Because “the claimant’s attorney must refund to the claimant the amount

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of the smaller fee,” Gisbrecht, 535 U.S. at 796, the Court will order Plaintiff’s counsel to

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refund the $7,402.30 EAJA award to Plaintiff upon Plaintiff’s counsel’s receipt of the

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attorney fees awarded by this order.

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III.

CONCLUSION

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Therefore,

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IT IS ORDERED that Plaintiff’s Attorney’s motion for attorney fees under 42

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U.S.C. § 406(b) (Doc. 27) is GRANTED in the amount of $18,923.75.

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IT IS FURTHER ORDERED that Plaintiff’s counsel shall, after receipt of the

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above-awarded fee, refund to Plaintiff the fee previously awarded under the EAJA, in the

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amount of $7,402.30.

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Dated this 22nd day of August, 2023.

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