Davis v. Commissioner Social Security Administration
ORDER - Plaintiff's counsel's motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 24 ) is GRANTED. Plaintiff's counsel is entitled to $19,642 in § 406(b) fees, representing 25 percent of Plaintiff' s retroactive benefits recovery. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the $5,971.17 previously paid to Plaintiff's counsel and send Plaintiff's attorney the balance of $13,670.83, less any applicable administrative assessment as allowed by statute. Signed on 1/4/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID W. DAVIS,
Case No. 6:14-cv-1910-SI
CAROLYN W. COLVIN,
Commissioner of Social Security,
On January 14, 2016, the Court remanded this matter for further proceedings. On
February 3, 2016, the Court granted Plaintiff’s unopposed application for attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of
Plaintiff’s counsel now moves for attorney’s fees of $19,642 pursuant to 42 U.S.C.
§ 406(b). ECF 36. This figure represents 25 percent of Plaintiff’s retroactive benefits. Plaintiff’s
counsel requests an additional payment from Plaintiff of $13,670.83, which represents the
requested $19,642 less the EAJA fees of $5,971.17 already received. Although Defendant does
not object to the proposed award, the Court must perform an independent review to ensure that
ORDER – Page 1
the award is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For the following
reasons, Plaintiff’s counsel’s motion for fees is granted.
Under 42 U.S.C. § 406(b), a court entering judgment in favor of a social security
disability insurance claimant who was represented by an attorney “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.”
Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). Counsel requesting the fee bears the
burden to establish the reasonableness of the requested fee. Gisbrecht, 535 U.S. at 807. The
attorney’s fee award is paid by the claimant out of the past-due benefits awarded; the losing party
is not responsible for payment. Gisbrecht, 535 U.S. at 802.
A court reviewing a request for attorney’s fees under § 406(b) “must respect ‘the primacy
of lawful attorney-client fee agreements,’ ‘looking first to the contingent-fee agreement, then
testing it for reasonableness.’” Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793,
808). Routine approval of fees pursuant to a contingency fee agreement calling for the statutory
maximum is, however, disfavored. See Fintics v. Colvin, 2013 WL 5524691, at *2 (D. Or. Oct. 2,
2013). Contingent fee agreements that fail to “yield reasonable results in particular cases” may
be rejected. Gisbrecht, 535 U.S. at 807. There is no definitive list of factors for determining the
reasonableness of the requested attorney’s fees, but courts may consider the character of the
representation, the results achieved, whether there was delay attributable to the attorney seeking
the fee, and whether the fee is in proportion to the time spent on the case (to avoid a windfall to
attorneys). See Id. at 808; Crawford, 586 F.3d at 1151-52. Although the Supreme Court has
instructed against using the lodestar method to calculate fees, a court may “consider the lodestar
calculation, but only as an aid in assessing the reasonableness of the fee.” Crawford, 586 F.3d
ORDER – Page 2
at 1148; see also Gisbrecht, 535 U.S. at 808 (noting that courts may consider counsel’s record of
hours spent representing claimant and counsel’s normal hourly billing rate for non-contingency
work as an aid in considering reasonableness of requested fees).
As prescribed by Gisbrecht and Crawford, the Court begins its analysis by reviewing the
contingency fee agreement executed by Plaintiff and his counsel. ECF 13-2. Plaintiff agreed to
pay attorney’s fees not to exceed 25 percent of the back benefits awarded, which is within the
statutory maximum and is the amount Plaintiff’s counsel seeks in this motion.
The Court next considers the appropriate factors to determine whether a downward
adjustment is necessary in this case, and finds that no downward adjustment is warranted.
Plaintiff’s counsel achieved good results for Plaintiff (remand for further proceedings), the
representation of Plaintiff was professional, there was no significant delay attributable to
Plaintiff’s counsel, and the fee was in proportion to the time spent on the case and would not
result in a windfall to Plaintiff’s counsel. Plaintiff’s counsel spent approximately 32.6 hours on
the case. The effective hourly rate for the requested fee is, therefore, approximately $602.52,
which is below effective hourly rates that have been approved in this district. See, e.g., Quinnin
v. Comm’r, 2013 WL 5786988, at *4 (D. Or. Oct. 28, 2013) (approving de facto hourly rate of
$1,240 for attorney time); Ali v. Comm’r, 2013 WL 3819867 (D. Or. July 21, 2013) (approving
de facto hourly rate of $1,000); Breedlove v. Comm’r, 2011 WL 2531174 (D. Or. June 24, 2011)
(approving de facto hourly rate of $1,041.84).
Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 24) is
GRANTED. Plaintiff’s counsel is entitled to $19,642 in § 406(b) fees, representing 25 percent of
Plaintiff’s retroactive benefits recovery. When issuing the section 406(b) check for payment to
ORDER – Page 3
Plaintiff’s attorney, the Commissioner is directed to subtract the $5,971.17 previously paid to
Plaintiff’s counsel and send Plaintiff’s attorney the balance of $13,670.83, less any applicable
administrative assessment as allowed by statute.
IT IS SO ORDERED.
DATED this 4th day of January, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
ORDER – Page 4
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