Jeffries v. Astrue

Filing 52

ORDER GRANTING Plaintiff's counsel's 47 Motion for attorney's fees pursuant to 42 U.S.C. § 406(b). Counsel is awarded $70,000. This amount will be offset by the $20,535.39 previously awarded under the Equal Access to Justice Act (EAJA) resulting in a net award of $49,464.61. Signed by Magistrate Judge Leslie A Bowman on 5/4/16.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner, Social)
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Security Administration,
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Defendant.
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Paula K. Jeffries,

No. CV 12-853-TUC-LAB
ORDER

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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 27, 2016. (Doc. 47)
Magistrate Judge Leslie A. Bowman presides over this action pursuant to 28 U.S.C. §
636(c). (Doc. 19)

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

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Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1) In an order issued on December 6,

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2013, this court reversed the Commissioner’s final decision and remanded for further

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administrative proceedings. (Doc. 41) On March 5, 2014, this court granted the plaintiff’s

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motion for attorney’s fees in the amount of $6,000 pursuant to the Equal Access to Justice Act

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(EAJA), 28 U.S.C. § 2412(d). (Doc. 46) The Commissioner subsequently awarded the

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claimant benefits. (Doc. 48, p. 3)

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In the pending motion, the plaintiff’s counsel, Patrick R. McNamara, moves for an award

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of $70,000 in attorney’s fees pursuant to a contingent-fee agreement he had with the claimant.

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(Doc. 48); (Doc. 48-1, pp. 1-2)

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Discussion

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

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

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

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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).

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

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

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agreements.” Id. at 809, 1829.

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

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

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

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

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In the pending motion, the plaintiff’s counsel, Patrick R. McNamara, moves for an award

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of $70,000 pursuant to the contingent-fee agreement he had with the claimant. (Doc. 48); (Doc.

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48-1, pp. 1-2) The actual agreement provides for an award of 25 percent of past-due benefits,

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which would result in an award of $86,693.75. (Doc. 48, pp. 8-10) Counsel, however, asks for

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an award of $70,000 which is approximately 20.2 percent of the claimant’s past-due benefit

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award of $346,775. Id. Counsel notes that this action has been before the district court three

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times in total and that three EAJA awards of $4,535.39, $10,000, and $6000 respectively have

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already been granted. (Doc. 48, p. 15) Counsel acknowledges that the $70,000 award must be

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offset by the EAJA fees already paid. (Doc. 48)
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Counsel further explains that the award of $70,000 will result in an effective hourly rate

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of $604.49, because a total of 115.8 hours of attorney time has been spent on this case. (Doc.

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48, p. 12) He argues this rate is reasonable considering the contingent nature of the work, the

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rates approved by courts in the past, and his non-contingent fee rate, which is $400 per hour.

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(Doc. 48)

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

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

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

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delay. The size of the award is large, but the Ninth Circuit has approved effective hourly rates

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of $519, $875, and $902 without finding that they are unreasonable. See Crawford v. Astrue,

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586 F.3d 1142, 1153 (9th Cir. 2009) (Clifton, J., concurring in part and dissenting in part).

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The Commissioner notes that the plaintiff’s counsel, Mr. McNamara, entered this case

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rather late in the litigation and that most of the attorney hours were expended by the claimant’s

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prior counsel, Phillip Verrette, who is now deceased. (Doc. 49) Mr. McNamara acknowledges

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this fact and states for the record that he will be sharing his fee with Mr. Verrette’s widow

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consistent with Mr. Verrette’s legal services on this case. (Doc. 48, p. 16) Accordingly,

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IT IS ORDERED that the plaintiff’s counsel’s motion for attorney’s fees pursuant to 42

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U.S.C. § 406(b), filed on March 27, 2016, is GRANTED. (Doc. 47) Counsel is awarded

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$70,000. This amount will be offset by the $20,535.39 previously awarded under the Equal

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Access to Justice Act (EAJA) resulting in a net award of $49,464.61.

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DATED this 4th day of May, 2016.

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