Widrig v. Apfel

140 F.3d 1207, 1998 WL 156526
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 7, 1998
DocketNos. 96-36262, 96-36263
StatusPublished
Cited by34 cases

This text of 140 F.3d 1207 (Widrig v. Apfel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Widrig v. Apfel, 140 F.3d 1207, 1998 WL 156526 (9th Cir. 1998).

Opinion

[1209]*1209ORDER

Appellee’s request for publication is granted. The Memorandum filed March 2, 1998, is redesignated as an authored Opinion by Judge Tashima.

OPINION

TASHIMA, Circuit Judge:

Carl Widrig and Jean Simpson (collectively “appellants”) appeal the district court’s awards of attorney’s fees in their Social Security cases.1 In both cases, the court awarded fees based on an hourly rate of $175. Appellants seek an hourly rate of $200, as well as a multiplier due to the contingent nature of their fee arrangements.2 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm both cases. We review the amount of attorney’s fees awarded by the district court for an abuse of discretion. See Allen v. Shalala, 48 F.3d 456, 457 (9th Cir.1995).

After counsel successfully represented appellants in the district court in appealing the denials of their Social Security benefits, appellants sought attorney’s fees pursuant to 42 U.S.C. § 406(b)(1).3 In accordance with § 406(b)(1) and contractual arrangements, counsel was to be paid on a contingency basis at twenty-five percent of the retroactive benefits received. In Widrig’s case, this would amount to $312/hour. The district court found that $175 was a reasonable hourly rate, “even in light of the contingent nature of social security cases, and did not .apply an enhancement multiplier. In Simpson’s case, the contingent fee would amount to $225.95/ hour- ,The district court in this case also found that $175 was a reasonable hourly rate and that there were no grounds for adjusting the lodestar amount.

I. Reasonable Hourly Rate

This Circuit has adopted the “lodestar” method of calculating attorney’s fees under § 406(b)(1).4 See Allen, 48 F.3d at 458. To calculate a reasonable attorney’s fee for a successful social security claim, the district court multiplies a reasonable hourly rate by the number of hours reasonably expended on the litigation. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Allen, 48 F.3d at 458. The court may then adjust that lodestar amount by considering the twelve factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975).5 See Allen, 48 F.3d at 458.

Appellants contend that declarations of the prevailing market rate in the relevant community are sufficient to establish a reasonable hourly rate, citing Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 696 (9th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 367, 139 L.Ed.2d 286 (1997). While this may be true, appellants failed to submit “satisfactory evidence ... that the requested rates are in line with [1210]*1210those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984).

In support of their claims, appellants submitted affidavits from Drew Johnson and Bruce Brewer, two attorneys with extensive experience in Social Security eases, who stated that $200 was a reasonable hourly rate for the services of appellants’ counsel. However, this does not establish the prevailing market rate. The only evidence of rates charged for similar services is that Johnson, who has twenty years’ experience in Social Security matters and also represents claimants in federal court, charges $150/hour. The Johnson and Brewer affidavits merely attest that $200 is a reasonable hourly rate for the services of appellants’ counsel. In light of the evidence submitted, the district court did not abuse its discretion in either case in finding the evidence insufficient to support an award based on an hourly rate of $200.

Appellants also contend that the district court abused its discretion because it failed to explain the reasons for its conclusions. Appellants rely on Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir.1987), which reversed an award of attorney’s fees because the record contained no basis for the amount awarded. See id. at 1263. However, unlike Jordan, the district court in the instant cases did make findings regarding the sufficiency of the evidence submitted by appellants and explained the reasons for its conclusions. The court found that the Johnson and Brewer affidavits were insufficient to support an hourly rate of $200. In Widrig’s case, it also reasoned that counsel had recently been awarded fees at an hourly rate of $175, further justifying $175 as a reasonable lodestar rate. Thus, there was no abuse of discretion.6

II. Contingency

Appellants correctly contend that contingency is a factor to be considered in determining a reasonable fee. See Allen, 48 F.3d at 460. However, the records show that the district court did consider contingency in making its decisions.

In Widrig, the court noted our admonition not to allow the contingency factor to make victorious claimants subsidize the claims of losing claimants, see id., and thus declined to increase the lodestar rate by a contingency enhancement. In Simpson, the court stated that it had “fully considered each of the factors noted in Kerr, as well as the arguments of counsel,” and concluded that there were no grounds to increase the lodestar rate, reasoning that the case was “a straightforward social security case.” Cf. Straw v. Bowen, 866 F.2d 1167, 1170 (9th Cir.1989) (finding that contingency did not justify tripling standard rate because there was “no evidence that the ... cases were unusually risky”).

Once the court considers whether to enhance for contingency, the decision “[w]hether and to what extent this factor will affect the fee ultimately awarded is a matter within the district court’s discretion.” Allen, 48 F.3d at 460. Neither court abused its discretion in deciding not to enhance for contingency.

Appellants cite Fadhl v. City and County of San Francisco, 859 F.2d 649 (9th Cir.1988), for the proposition that we should examine the contingency of Social Security cases as a class rather than assessing the riskiness of a particular case. Fadhl, however, dealt with a fee-shifting statute, under which the prevailing party’s attorney’s fees are paid by the losing party. Id. at 650.7

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140 F.3d 1207, 1998 WL 156526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/widrig-v-apfel-ca9-1998.