Poremba v. Astrue

Filing 39

ORDER that 37 Motion for Attorney Fees is GRANTED. Signed by Judge James C. Mahan on 10/4/17. (Copies have been distributed pursuant to the NEF - MMM) (Main Document 39 replaced on 10/4/2017 - nef regenerated) (MMM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM M. POREMBA,

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Plaintiff(s),

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Case No. 2:13-CV-81 JCM (NJK)
ORDER

v.
CAROLYN W. COLVIN,

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Defendant(s).

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Presently before the court is attorney Marc V. Kalagian and the Law Offices of Rohlfing

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& Kalagian, LLP’s (collectively, “counsel”) motion for attorney’s fees. (ECF No. 37). Defendant

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Carolyn Colvin, as acting commissioner of the Social Security Administration, filed a non-

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opposition response. (ECF No. 38). Plaintiff William Poremba has not filed a response, and the

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time to do so has passed.

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I.

Facts

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On June 23, 2011, plaintiff signed a social security representation agreement with counsel.

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(ECF No. 37-1). The agreement created a payment structure whereby plaintiff would pay counsel

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25% of plaintiff’s backpay award, up to a capped $6,000 limit, if plaintiff received the award at or

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before a first hearing decision from an administrative law judge (“ALJ”). Id. Plaintiff further

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agreed to pay counsel 25% of the past-due benefits, without limitation, resulting from any reversal

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of an unfavorable ALJ decision. Id.

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Plaintiff applied for and was denied social security disability insurance benefits. (ECF No.

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1).

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commissioner of the Social Security Administration.

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James C. Mahan
U.S. District Judge

On October 18, 2013, plaintiff filed a complaint against Michael Astrue, the former

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On May 13, 2014, Magistrate Judge Koppe ordered the case be remanded to the Social

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Security Administration. (ECF No. 32). On remand, the administrative law judge found plaintiff

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disabled since April 14, 2009. (ECF No. 37-2 at 10). On March 7, 2016, the commissioner sent

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plaintiff a letter, stating that the agency withheld twenty-five percent of plaintiff’s past-due

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benefits to pay attorney’s fees, which was $22,622.25 in this case. (ECF No. 37-3 at 2–3).

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On December 15, 2016, counsel filed the instant motion, seeking $22,622.25 of plaintiff’s

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past-due benefits. (ECF No. 37). Included in counsel’s motion is proof of service as to plaintiff

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and defendant. (ECF No. 37 at 11).

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II.

Legal Standard

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Courts have jurisdiction to determine the reasonableness of an attorney’s requested fees.

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42 U.S.C. § 406(b)(1)(A) (“Whenever a court renders a judgment favorable to a claimant . . . who

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was represented before the court by an attorney, the court may determine and allow as part of its

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judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the

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past-due benefits to which the claimant is entitled by reason of such judgment.”). “§ 406(b) calls

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for court review of [contingent-fee] arrangements as an independent check, to assure that they

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yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).

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In reviewing fee requests under § 406(b), a district court must first look to the agreement

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and determine reasonableness. Id. at 807. Courts consider “the character of the representation and

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the results the representative achieved.” Id. at 808. A district court should not merely make a

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lodestar calculation, but rather should consider the reasonableness of the attorney’s request, “if not

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‘in excess of 25 percent.’” Id. at 799. Additionally, a court may properly reduce the fee for benefits

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that are not in proportion to the time spent on the case. Crawford v. Astrue, 586 F.3d 1142, 1151

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(9th Cir. 2013). The moving attorney bears the burden of proving that the fees sought are

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reasonable. Gisbrecht, 535 U.S. at 807.

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“Congress harmonized fees payable by the Government under [Equal Access to Justice

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Act] with fees payable under § 406(b) out of the claimant's past-due Social Security benefits in

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this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must

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James C. Mahan
U.S. District Judge

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‘refun[d] to the claimant the amount of the smaller fee.’” Id. (citing Act of Aug. 5, 1985, Pub.L.

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99–80, § 3, 99 Stat. 186).

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III.

Discussion

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The court will approve counsel’s requested attorney’s fees, as the agreement and fees

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sought pursuant to the agreement are reasonable. The agreement provided a tiered system whereby

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counsel would receive a smaller, capped award if plaintiff obtained a favorable ruling at or before

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an initial appearance in front of an ALJ. (ECF No. 37-1). Here, the fee structure whereby counsel

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would receive 25% of plaintiff’s backpay award if counsel obtained a reversal of an unfavorable

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ALJ ruling was a reasonable agreement entered into by the parties.

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A contingency award of 25% is reasonable in this case. In this case, 25% of plaintiff’s

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backpay award comes to $22,622.25. (ECF No. 37-3 at 2–3). Counsel’s statement of work lists

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that it expended 22.1 hours preparing and litigating the case, with 2.3 of these hours marked as

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paralegal work. Counsel thus requests $1,023.62 per hour (rounded) for time spent on the case.

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Counsel’s representation of plaintiff in this case merits the requested award. Importantly,

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defendant Colvin, on behalf of the Social Security Administration, filed a non-opposition response

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to counsel’s motion, and plaintiff has not filed a response. And the attorneys in this case assumed

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a financial risk in continuing to litigate plaintiff’s case after an initially unfavorable ruling. If

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counsel were unsuccessful in obtaining a reversal of the prior ALJ decision, counsel would not

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have received payment at all for its time spent on the case. Cf. Jameison v. Astrue, No. 1:09-cv-

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00490-LJO-DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending an award of

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attorney’s fees of $1,169.49 per hour due to effective representation and the financial risk

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associated with the contingent-fee arrangement).

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Further, the hours listed in the statement of work appear to be an incomplete reflection of

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counsel’s efforts in the case. While the hourly rate based on the statement of work appears high,

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counsel asserts that “[t]he manner and approach to the case saved time and reduced the

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accumulation of past due benefits.” (ECF No. 37 at 4). Other courts have recommended similar

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or greater awards of attorney’s fees for similar reasons. See Kazanjian v. Astrue, No. 09 civ. 3678

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(BMC), 2011 WL 2847439, at *2 (E.D.N.Y. July 15, 2011) (upholding an hourly rate of $2,100

James C. Mahan
U.S. District Judge

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and suggesting that the case “constitutes an effective case in point of why imputed hourly rates are

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frequently misleading in these cases.”); Jameison, 2011 WL 587096, at *2.
In light of counsel’s efficient representation of plaintiff, and the backpay award obtained

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on remand, the fees sought are reasonable. The court will therefore approve counsel’s request.

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The commissioner paid counsel $4,000 pursuant to the Equal Access to Justice Act

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(EAJA). (ECF No. 37). Counsel must refund this amount to the claimant. See Act of Aug. 5,

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1985, Pub.L. 99–80, § 3, 99 Stat. 186.

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IV.

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Conclusion
Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that counsel’s motion for

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attorney’s fees (ECF No. 37) be, and the same hereby is, GRANTED, consistent with the

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foregoing.

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DATED October 4, 2017.
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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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