Matthews v. Astrue

Filing 42

ORDER granting 41 Motion for Attorney Fees. Counsel is awarded $20,401.50 less the $5,001.20 previously awarded under the Equal Access to Justice Act (EAJA) resulting in a net award of $15,400.30. Signed by Magistrate Judge Leslie A Bowman on 8/22/13.(SMBE)

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10
11
12
13
14
15

)
)
)
Plaintiff,
)
)
vs.
)
Michael J. Astrue, Commissioner of )
)
Social Security,
)
)
Defendant.
)
)
Jennifer L. Matthews,

No. CIV 11-290-TUC-LAB
ORDER

16
17
18

Pending before the court is the plaintiff’s counsel’s motion for attorney’s fees pursuant
to 42 U.S.C. § 406(b), filed on March 18, 2013. (Doc. 41)

19

The plaintiff filed this action for review of the final decision of the Commissioner for

20

Social Security pursuant to 42 U.S.C. § 405(g). In an order issued on July 12, 2012, this court

21

reversed the Commissioner’s final decision and remanded the case for payment of benefits. On

22

February 11, 2013, this court granted the plaintiff’s motion for attorney’s fees in the amount of

23

$5,001.20 pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. 40)

24

In the pending motion, the plaintiff’s counsel moves for an order allowing him 25 percent of the

25

claimant’s past-due benefit award pursuant to their contingent-fee agreement, less the amount

26

already awarded under the EAJA. Neither the claimant nor the Commissioner filed a response

27

to the motion.

28

1
2

Magistrate Judge Leslie A. Bowman presides over this action pursuant to 28 U.S.C. §
636(c). (Doc. 19)

3
4

Discussion

5

In Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817 (2002), the Supreme Court

6

considered the interplay between social security contingent-fee agreements and the dictates of

7

42 U.S.C.A. § 406(b)(1)(A), which reads in pertinent part as follows:

8
9
10
11

Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, 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 to
which the claimant is entitled by reason of such judgment . . . .
42 U.S.C.A. § 406(b)(1)(A).

12

The Court held “that § 406(b) does not displace contingent-fee agreements.” Id. at 808,

13

1829. “[I]nstead, §406(b) instructs courts to review for reasonableness fees yielded by those

14

agreements.” Id. at 809, 1829.

15

When considering a fee request, the court should start with the agreement and then test

16

it for reasonableness. Id. at 808, 1828. Recovery may be reduced because of the quality of the

17

representation, because of unreasonable delay, or because “the benefits are large in comparison

18

to the amount of time counsel spent on the case.” Id.

19

In the pending motion, counsel moves for an award of $20,401.50, which is 25% of the

20

claimant’s past-due benefits in accordance with the contingent-fee agreement. (Doc. 41) He

21

asserts he and his paralegal spent 28.6 hours on the case resulting an effective hourly rate of

22

$713.34. (Doc. 41, p. 6)

23

Upon review of the case file, the court finds that counsel’s prosecution of this action fell

24

within the broad range of competent representation. The court finds no reason to reduce the

25

award based on the quality of the representation. Neither did counsel engage in unreasonable

26

delay. The court is concerned by the size of the award in relation to the number of hours spent.

27

The Ninth Circuit, however, has approved effective hourly rates of $519, $875, and $902

28
-2-

1

without finding that they are unreasonable. See Crawford v. Astrue, 586 F.3d 1142, 1153 (9th

2

Cir. 2009) (Clifton, J., concurring in part and dissenting in part). Accordingly,

3
4

IT IS ORDERED that the motion for attorney’s fees pursuant to 42 U.S.C. § 406(b), filed

5

on March 18, 2013, is GRANTED. (Doc. 41) Counsel is awarded $20,401.50 less the

6

$5,001.20 previously awarded under the Equal Access to Justice Act (EAJA) resulting in a net

7

award of $15,400.30.

8
9

DATED this 22nd day of August, 2013.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-