Dawes v. Sullivan

768 F. Supp. 1328, 1991 U.S. Dist. LEXIS 10580, 1991 WL 144779
CourtDistrict Court, D. Arizona
DecidedApril 18, 1991
DocketNo. CIV 87-1843 PHX RCB
StatusPublished
Cited by1 cases

This text of 768 F. Supp. 1328 (Dawes v. Sullivan) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawes v. Sullivan, 768 F. Supp. 1328, 1991 U.S. Dist. LEXIS 10580, 1991 WL 144779 (D. Ariz. 1991).

Opinion

ORDER

BROOMFIELD, District Judge.

Petitioners as plaintiffs attorneys have filed a petition for approval of attorneys’ fees, pursuant to 42 U.S.C. § 406(b) (Social Security Act). This court heard oral arguments on April 8, 1991. After considering both parties’ written and oral arguments, this court now rules.

I. FACTS.

Plaintiff retained petitioners, Jerome, Gibson, Stewart, Friedman, & Stevenson, P.C., in August 1986 to represent her in all matters relating to her Social Security Disability claim. Plaintiff received an unfavorable Administrative Law Judge decision from the Social Security Administration on May 7, 1987, denying her a period of disability and Disability Insurance Benefits. The Appeals Council refused plaintiff’s request for a review on September 16, 1987. Plaintiff appealed her claim to this court and on November 1, 1988, the case was remanded to the Secretary of the Department of Health and Human Services for reconsideration. On July 31, 1989, an Administrative Law Judge issued a favorable recommended decision at the proceedings held pursuant to the remand order. The Appeals Council adopted the recommended decision on September 18, 1989, approving a period of disability and Disability Insurance Benefits for plaintiff.

Plaintiff and petitioners have a written employment agreement stating that petitioners receive a contingency fee of twenty-five percent of all past-due Social Security benefits payable to plaintiff. Plaintiff’s back due disability benefits totalled approximately $63,070.00. The Social Security Administration withheld $15,767.50, twenty-five percent, from the plaintiff’s past-due benefits for payment of petitioners’ fees. The Social Security Administration authorized $8,000.00 to be paid out of the $15,767.50 for petitioners’ representation of plaintiff before the Social Security Administration. Petitioners initially sought this court to approve the remaining $7,767,50 for services rendered before this court, but have amended their petition to request $5,675.00.

II. ANALYSIS.

1. Applicable standard.

This court is required to determine whether the fee requested by petitioners is reasonable. MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir.1975). The analysis of a reasonable fee in a Social Security case begins with the calculation of the lodestar amount — the product of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Starr v. Bowen, 831 F.2d 872, 874 (1987).

Once the lodestar amount has been calculated, the court may adjust the amount by considering the twelve factors identified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975) cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Straw v. Bowen, 866 F.2d 1167, 1169 (9th Cir.1989). The twelve factors are:

1) the time and labor required, 2) the novelty and difficulty of the questions involved, 3) the skill requisite to perform the legal service properly, 4) the preclusion of other employment by the attorney due to acceptance of the case, 5) the customary fee, 6) whether the fee is fixed or contingent, 7) time limitations imposed by the client or the circumstances, 8) the amount involved and the results obtained, 9) the experience, reputation, and ability of the attorneys, 10) the “undesirability” of the case, 11) the nature and length of the professional relationship with the client, and 12) awards in similar cases.

Starr, 831 F.2d at 874.

Defendant argues that several Kerr factors have been expressly supplanted to the lodestar calculation. Miller v. Los Angeles County Board of Education, 827 F.2d 617, 620-21 n. 4 (9th Cir.1987); Pierce v. Underwood, 487 U.S. 552, 573, 108 S.Ct. [1330]*13302541, 2554, 101 L.Ed.2d 490 (1988). Although petitioners do not dispute this, this court finds that all twelve Kerr factors may still be examined. Neither Miller or Pierce were decided under 42 U.S.C. § 406(b). However, in 1989 the Ninth Circuit discussed the applicable standard for approval of attorney fees under 42 U.S.C. § 406(b). Straw v. Bowen, 866 F.2d 1167 (9th Cir.1989). The Ninth Circuit specifically held that the lodestar amount could be adjusted by considering the twelve Kerr factors. Id. at 1169. Thus, all twelve factors can be considered.

2. Calculation of lodestar amount.

Defendant concedes that the 22.7 hours claimed by petitioners in this case are reasonable. Defendant indicates that $150.00 is a reasonable hourly rate. Although petitioners note that there is no basis for determining the prevailing rate because all Social Security claims in Phoenix are taken on a contingent agreement, petitioners agree that $150.00 per hour is reasonable. Thus, the lodestar amount, as agreed upon by both parties, is $3,405.

3. Adjustment for Kerr factors.

The following is the parties’ analysis under each of the Kerr factors identified as applicable in this case.

A. The time and labor required. Defendant argues that this calculation would be logically subsumed under the “hours reasonably required” component of the lodestar calculation. Petitioners argue that this matter involved a lengthy delay from plaintiffs retention of petitioners to the favorable outcome.

B. The preclusion of other employment by the attorney due to the acceptance of the case. Defendant argues that this factor is subsumed into the “hours reasonably required” component of the lodestar calculation. Petitioners argue that although he continued an active law practice, this case required a persistence that defendants ignore.

C. The amount involved and the results obtained. Defendant argues that attorney’s fees should be carefully reviewed when, as here, any fee awarded must be paid from what is “an already-inadequate stipend for the support and maintenance of the claimant and his dependents.” MacDonald v. Weinberger, 512 F.2d 144, 146-47 (9th Cir.1975). Petitioners argue that plaintiff and her dependent daughter ultimately received at least $45,000.00 after the withholding of funds for attorneys’ fees.

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768 F. Supp. 1328, 1991 U.S. Dist. LEXIS 10580, 1991 WL 144779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawes-v-sullivan-azd-1991.