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Hardin v. Astrue


June 23, 2009


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


On July 24, 2008, counsel for plaintiff filed a Petition for Approval of Attorney Fees Under 42 U.S.C. § 406(b), with a supporting memorandum of points and authorities and declaration by plaintiff's counsel, Troy Monge of the Law Offices of Martin Taller, APC (collectively, the "Petition"). The Petition requests payment of attorney fees in the total amount of $23,116.75 for 25.7 hours of attorney time expended before this Court. On August 4, 2008, defendant submitted a Response to Plaintiff's Counsel's Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b). For the reasons stated below, the Petition is GRANTED.


Plaintiff's counsel represented plaintiff before the United States District Court pursuant to a contingency fee agreement ("Agreement"), which provides in Paragraph 4 for attorney fees of "up to 25% of past-due benefits due me and my family." (Petition at 2, Exhibit 1; emphasis added.) On March 26, 2007, the Court reversed the Commissioner's decision and remanded this case for further administrative proceedings. On March 21, 2008, the Commissioner issued a decision granting plaintiff's application for benefits. (Petition at 2.) On June 19, 2008, plaintiff was awarded $92,467.00 in retroactive benefits. (Petition at 2, Exhibit 2.) Pursuant to stipulation of the parties and an Order of this Court filed on August 2, 2007, plaintiff's counsel was awarded the sum of $3,772.00 in attorney fees pursuant to the Equal Access to Justice Act ("EAJA"). (Petition at 2.)


Section 406(b) of Title 42 provides:

Whenever a court renders a judgment favorable to a claimant . . . 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 . . . . In case of any such judgment, no other fee may be payable . . . for such representation except as provided in this paragraph.

42 U.S.C. § 406(b)(1)(A).*fn1

In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court held that Section 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases. Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. Within this 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered.

Id. at 807 (citations omitted).

The hours spent by counsel representing the claimant and counsel's "normal hourly billing charge for non-contingent-fee cases" may aid "the court"s assessment of the reasonableness of the fee yielded by the fee agreement." Gisbrecht, 535 U.S. at 808. The Court appropriately may reduce counsel's recovery based on the character of the representation and the results the representative achieved. If the attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court. If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order.

Id. (citations omitted); see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)(identifying factors relevant to adjustment of an attorney's lodestar figure).

Significantly, since Gisbrecht, district courts have been deferential to the terms of contingency contracts in Section 406(b) cases, recognizing that the resulting de facto hourly rates typically exceed those for non-contingency fee arrangements. See Ellick v. Barnhart, 445 F. Supp. 2d, 1166, 1169-71 (C.D. Cal. 2006)(surveying post-Gisbrecht cases and finding decisions approving fee awards involving range of net hourly rates of up to $982 per hour); Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003)(awarding $25,132.50 in Section 406(b) fees, equivalent to $450 per hour, and citing, inter alia, Martin v. Barnhart, 225 F. Supp. 2d 704 (W.D. Va. 2002)(awarding $10,189.50, equivalent to $605 per hour), and Coppett v. Barnhart, 242 F. Supp. 2d 1380 (S.D. Ga. 2002)(awarding $6,554.12, equivalent to $350.49 per hour)); see also Mudd v. Barnhart, 418 F.3d 424, 427 (4th Cir. 2005)(affirming denial of motion challenging $12,231.50 fee award equivalent to 25% of past benefits and hourly rate of $736.84); Blizzard v. Astrue, 496 F. Supp. 2d 320, 324 (S.D.N.Y. 2007)(approving $26,798.25 fee award equaling 25% of past benefits and amounting to an hourly rate of $705); Koester v. Astrue, 482 F. Supp. 2d 1078, 1083 (E.D. Wis. 2007)(finding $16,890 fee award amounting to 25% of past benefits and hourly rate of $580.67 to be reasonable and rejecting characterization of award as "windfall").


The Court finds that the Petition demonstrates that "the fee sought is reasonable for the services rendered" and does not exceed the agreed-upon 25 percent of past-due benefits.*fn2 Neither "the character of the representation" nor "the results the representative achieved" suggest the unreasonableness of the fee sought.

Plaintiff's counsel was not responsible for any significant delay in securing plaintiff's benefits. Nothing in the record before the Court suggests that there was any overreaching in the making of the fee agreement or any impropriety on the part of counsel in his representation of plaintiff before this Court. Counsel assumed the risk of nonpayment inherent in a contingency agreement, the agreed-upon contingent fee does not exceed the 25% statutory cap, and the Petition seeks no more than the agreed fee. In view of these circumstances and of the range of hourly rates charged for legal services in the Los Angeles area, the Court finds the de facto hourly rate of $899.48*fn3 and the total requested fee of $23,116.75 are reasonable under the inquiry called for by Gisbrecht.


For the reasons set forth above, the Petition is GRANTED. Section 406(b) fees are allowed in the gross amount of $23,116.75 to be paid out of the total amount withheld by the Commissioner from plaintiff's past-due benefits. In view of the previous payment of EAJA fees in the amount of $3,772.00, the Commissioner shall certify payment to counsel of a net fee of $19,344.75. The balance of the withheld funds shall be paid to plaintiff.


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