Shepherd v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Joseph Walter Shepherd, No. CV-19-03375-PHX-DGC

10 Plaintiff, ORDER

11 v.

12 Kilolo Kijakazi, Acting Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff’s counsel, Mark Caldwell, has filed a motion for an award of $41,801.40 17 in attorney’s fees under 42 U.S.C. § 406(b). Doc. 24. Defendant takes no position on the 18 reasonableness of the amount of fees sought because she is not party to the fee agreement 19 between Plaintiff and his counsel, but rather acts in a role “resembling that of a trustee” for 20 Plaintiff. Doc. 26 (citing Gisbrecht v. Barhart, 535 U.S. 789, 798 n.6 (2002)). For reasons 21 stated below, the Court will grant the motion. 22 The fee agreement between Plaintiff and counsel provides for a contingency fee of 23 25% of all past-due benefits awarded to Plaintiff. Doc. 25-2 at 2. Plaintiff was awarded 24 $184,505.60 in past-due benefits. Doc. 25-1 at 3; see also Doc. 26 at 2 n.2. The Social 25 Security Administration (“SSA”) withheld 25% of this amount, or $46,126.40, from the 26 award. Doc. 25-1 at 4. Counsel has petitioned the SSA for a fee for administrative services 27 under 42 U.S.C. § 406(a) of $4,325.00, leaving $41,801.40 remaining for potential attorney 28 fees. Doc. 25, at 2. Counsel has submitted documentation showing that he performed 40.1 1 hours of billable work on this case. See Doc. 25-3. The effective hourly rate is $1,042.43 2 ($41,801.40/40.1 hours). See Doc. 25 at 4. 3 Section 406(b) calls for court review of contingent-fee arrangements as an 4 “independent check, to assure that they yield reasonable results in particular cases.” 5 Gisbrecht, 535 U.S. at 807. “Congress has provided one boundary line: Agreements are 6 unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due 7 benefits.” Id. Within that boundary, a plaintiff’s attorney must show that the fee sought is 8 reasonable for the services rendered. Id. In assessing the reasonableness of a contingent- 9 fee arrangement, a district court should consider the following factors: the character of the 10 representation and whether such representation was substandard, the results achieved, 11 delay attributable to the attorney, and whether the fee is in proportion to the time spent on 12 the case. Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009). 13 The Court finds that the fees requested by counsel in this case are reasonable. There 14 is no indication of substandard representation, and the award counsel achieved for Plaintiff 15 was considerable. Nor was there any notable delay in the progress of the case attributable 16 to counsel. From complaint to remand, the case ran less than one year. And the fee does 17 not appear disproportionate to the time counsel recorded. The opening and reply briefs 18 were detailed and tailored to the specific issues in Plaintiff’s case.1 The Court is also 19 mindful that the 25% contingent fee awarded here is less than the standard contingent fee 20 outside of the Social Security context, which often ranges from 30-40%, and that attorneys 21 such as counsel assume some risk of not getting paid by working solely on a contingent fee 22 basis. The Court sees no reason to adjust downward from the 25% rate counsel and 23 Plaintiff agreed upon on the outset of this case. See Biggerstaff v. Saul, 840 F. App’x 69, 24 71 (9th Cir. 2020) (affirming fees amounting to $1,400 per hour); Stephen M. v. Saul, No. 25 ED CV 18-2325-PLA, 2021 WL 1255191, *3 (C.D. Cal. Jan. 13, 2021) (awarding fees 26 amounting to $1,329.79 per hour); Daniel v. Astrue, No. EDCV 04-01188-MAN, 2009 WL 27 1 Compare Davis v. Astrue, No. 07-6352-PK, 2010 WL 2720732, *5 (D. Or. July 7, 2010) 28 (adjusting attorney fee downward after commenting on the simplicity of the case and counsel’s anemic reply brief, which was fewer than 4 pages). 1941632, *2 (C.D. Cal. July 2, 2009) (awarding fees amounting to $1,491.25 per hour); see also Villa v. Astrue, No. CIV-S-06-0846 GGH, 2010 WL 118454, *2 (E.D. Cal. Jan. 7, 2010) (awarding fees amounting to an hourly rate exceeding $1,000 per hour and noting that “[r]educing § 406(b) fees after Crawford is a dicey business”’). 5 The Court, accordingly, concludes that counsel is entitled to $41,801.40. This || amount equals 25% of the past-due benefits award of $184,505.60, minus the $4,325.00 || counsel has requested from the SSA for administrative services pursuant to § 406(a). 8 IT IS ORDERED: 9 1. Counsel’s motion for award of attorney’s fees under § 406(b) (Doc. 24) is 10 granted pursuant to 42 U.S.C. § 406(b). 11 2. Plaintiff’s counsel is awarded $41,801.40 in attorney’s fees, to be paid out of the 12 sums withheld by the Commissioner from Plaintiffs past-due benefits. 13 3. Plaintiff's counsel shall reimburse Plaintiff $8,230.53, the amount previously 14 paid by the government under the Equal Access to Justice Act, 28 U.S.C. 15 § 2412(d)(1)(A). 16 Dated this 5th day of October, 2021. 17 Ly i Daal 6 Crurpll 19 David G. Campbell 20 Senior United States District Judge 21 22 23 24 25 26 27 28

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