Hall v. Astrue
Filing
30
ORDER granting 26 Motion for Attorney Fees in the amount of $23,000. The SSA is directed to pay Hall's attorneys their requested $23,000 in fees and to release the balance of the withheld past-due benefits to Hall. Hall's counsel are directed to remit to Hall $6,141.16 in EAJA fees that they previously received. Signed by Magistrate Judge Carolyn S Ostby on 9/30/2014. (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
DAVIN R. HALL,
CV 10-38-BLG-CSO
Plaintiff,
v.
ORDER GRANTING MOTION
FOR AWARD OF ATTORNEY
FEES UNDER
42 U.S.C. § 406(b)(1)
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
Before the Court is a motion by Plaintiff’s counsel for attorney
fees under 42 U.S.C. § 406(b)(1). ECF 26. Defendant Acting
Commissioner of Social Security (“Commissioner”) filed a response
taking no position on the motion. She noted, however, that to the
extent the Court requires a response, she has no objection to the
motion. ECF 29.
I.
BACKGROUND
On September 21, 2005, Plaintiff Davin R. Hall (“Hall”) filed an
application for disability insurance benefits (“DIB”) alleging disability
starting August 23, 2005. Affirmation in Support of Mtn. (ECF 28) at ¶
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2. The Social Security Administration (“SSA”) denied the application.
Hall requested a hearing before an administrative law judge (“ALJ”)
and retained counsel to represent him. Id. After the hearing, the ALJ
issued a decision finding Hall not disabled. Hall sought review by the
Appeals Council, which denied his request for review, making the ALJ’s
decision final for purposes of judicial review. Id. at ¶ 3; see also 20
C.F.R. § 404.981.
Hall decided to appeal the Commissioner’s decision in this Court.
Id. at ¶ 4. He executed a retainer agreement authorizing the Binder &
Binder law firm to represent him on appeal. Id.; see also Retainer
Agreement & Assignment (ECF 28-1) at 2. The agreement provides,
among other things, that if the federal court remands Hall’s case to the
SSA and Hall ultimately is awarded DIB, he will pay his attorneys 25
percent of past-due benefits upon approval by the federal court. ECF
28 at ¶ 4; ECF 28-1 at 2.
Hall filed an action appealing the Commissioner’s decision in this
Court on April 12, 2010. Id. at ¶ 5; see also Cmplt. (ECF 1). On
November 8, 2010, the Court, after considering the briefing and
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administrative record, remanded the matter to the Commissioner for
further proceedings and entered Judgment. ECF 28 at ¶ 7; see also
ECF 20 and 21. Hall sought an award of attorney’s fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and the Court
awarded $6,141.16 in EAJA fees. ECF 28 at ¶ 8.
On remand to the Commissioner: (1) the Appeals Council vacated
the Commissioner’s final decision and remanded for another
administrative hearing, id. at ¶ 9; (2) a different ALJ held a second
administrative hearing and found Hall not disabled, id.; (3) Hall again
requested review by the Appeals Council, which remanded the matter
back to an ALJ for further proceedings, id.; and (4) the ALJ who first
presided over Hall’s claim held a third hearing and later issued a
written decision finding Hall disabled under the Social Security Act,
and thus entitled to a DIB award, id. at ¶ 10.
In a letter dated July 22, 2014, the SSA notified Hall of his
entitlement to monthly DIB beginning in February 2006. Among other
information in the letter, the SSA informed Hall that his first check
would be for $93,233.92, which was the amount he was due through
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July 2014. ECF 28-1 at 7. The letter also advised Hall that the SSA
withheld from his past-due benefits $31,077.98 “in case we need to pay
your lawyer.” Id. at 9. Thus, the total amount of Hall’s past-due
benefits was $124,311.90, which amount reflects $93,233.92 plus
$31,077.98 (which amount reflects approximately 25 percent of the
total amount of past-due benefits).
II.
LEGAL STANDARD
A district court entering judgment favorable to a DIB claimant
represented by an attorney before 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. §
406(b)(1)(A). The Ninth Circuit, in Crawford v. Astrue, 586 F.3d 1142
(9th Cir. 2009) (en banc), outlined how district courts are to determine
whether requested attorney fees are reasonable.
Relying on the U.S. Supreme Court’s decision in Gisbrecht v.
Barnhart, 535 U.S. 789 (2002), the Ninth Circuit in Crawford noted
that a reviewing court “must respect the primacy of lawful attorney-
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client fee agreements ... looking first to the contingent-fee agreement,
then testing it for reasonableness.” Crawford, 586 F.3d at 1148 (quoting
Gisbrecht) (internal citations and quotation marks omitted). The
reviewing court, when testing a contingent-fee agreement for
reasonableness, may reduce fees “if the attorney [1] provided
substandard representation, or [2] engaged in dilatory conduct in order
to increase the accrued amount of past-due benefits, or [3] if the
benefits are large in comparison to the amount of time counsel spent on
the case.” Id. at 1148 (citation and internal quotation marks omitted).
To assist it in its determination, a reviewing court may also “require
counsel to provide a record of the hours worked and counsel’s regular
hourly billing charge for noncontingent cases.” Id. Ultimately,
however, “[t]he attorney bears the burden of establishing that the fee
sought is reasonable.” Id.
III. DISCUSSION
Hall’s counsel seek the Court’s approval of a contingency fee of
$23,000.00. Mem. of Law in Support of Hall’s Mtn. for Fees (ECF 27) at
3. They also represent in their supporting memorandum that they sent
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to Hall a copy of their motion requesting Court approval of their fee
request. Id. The amount sought, $23,000.00, is 18.5 percent of the
total $124,311.90 past-due benefits awarded to Hall. Thus, the
requested fees are well-below the 25 percent cap allowed under 42
U.S.C. § 406(b).
Applying the authority discussed above, the Court concludes that
the amount sought is reasonable. First, there is no evidence in the
record that Hall’s attorneys provided “substandard representation.”
They took what the record reflects was a rather difficult case and
achieved a favorable result for Hall. It cannot be said that their legal
representation of Hall fell below acceptable standards in such cases.
Also, there is no indication anywhere in the record that the contingentfee agreement was obtained by fraud or any sort of overreaching. Also,
as noted, Hall was sent a copy of his attorneys’ motion now before this
Court, and he has not submitted any argument or proof that the
agreement was in any way improper.
Second, there is no evidence in the record that Hall’s attorneys
“engaged in dilatory conduct” in an effort to drive up the amount of
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past-due benefits. It is true that this matter took more than eight
years to resolve – from the filing of Hall’s DIB application in September
2005 to the third and final ALJ decision finding Hall disabled on May
29, 2014. But that lengthy period can be readily attributed to the
matter’s convoluted procedural history, which included three
administrative hearings, three ALJ decisions, three Appeals Council
proceedings, and one action in federal court. Nothing in the record
indicates that Hall’s attorneys were solely responsible for any
unnecessary delay at any stage of the proceedings.
Third, the requested amount of fees is “significantly lower than
the fees bargained for in the contingent-fee agreements[.]” Crawford,
586 F.3d at 1151. As noted, the contingent-fee agreement allows for
fees in the amount of 25 percent of past-due benefits. But Hall’s
attorneys’ request for $23,000.00 represents only 18.5 percent of pastdue benefits.
Also, the Court notes that the fees requested are “not excessively
large in relation to the benefits achieved.” Crawford, 586 F.3d at 1151.
Hall’s attorneys, much like the attorneys seeking fees in the three cases
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combined for decision in Crawford, “voluntarily evaluated the fees in
comparison to the amount of time spent on the case ... [and] voluntarily
reduced those fees substantially from the allowable 25%.” Id. at 115152.
Finally, the Court notes, as the Ninth Circuit recognized in
Crawford, that attorneys in DIB cases “receive no percentage of the
substantial future benefits paid to the claimants following their
successful representation.” Id. at 1152. In addition, attorneys
representing Social Security claimants “assume[ ] significant risk in
accepting these cases, including the risk that no benefits w[ill] be
awarded or that there [could] be a long court or administrative delay in
resolving the case[ ].” Id. The latter risk certainly was realized in this
case. And counsel have waited long enough for compensation for the
work they performed. See id.
Hall’s counsel have met their burden of establishing that the fee
they seek is reasonable. The Court will grant their motion.
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IV.
CONCLUSION
Based on the foregoing, IT IS ORDERED that the motion by
Plaintiff’s counsel for an award of attorney fees under 42 U.S.C. §
406(b)(1) (ECF 26) is GRANTED in the amount of $23,000.00. The SSA
is directed to pay Hall’s attorneys their requested $23,000.00 in fees
and to release the balance of the withheld past-due benefits to Hall.
Hall’s counsel are directed to remit to Hall $6,141.16 in EAJA fees that
they previously received.
DATED this 30th day of September, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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