United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 29
William G. Cobb United States Magistrate Judge
Report and Recommendation is made to the Honorable Howard D.
McKibben, United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR 1B 1-4.
the court is a motion for attorney fees under 42 U.S.C.
§ 406(b) filed by Plaintiff's counsel. (ECF Nos. 29,
29-1 to 29-8.) Plaintiff did not file a response to the
motion. The Commissioner of Social Security filed a response
indicating the Commissioner has no objection to the fee
request. (ECF No. 30.)
thorough review, the court finds the fees requested to be
reasonable and recommends that the motion be granted.
Linda Ann Lowman, represented by counsel, sought and was
granted in forma pauperis status and filed her complaint
requesting review of the final decision of the Commissioner.
(ECF Nos. 1, 2, 3.) Plaintiff filed a motion for reversal
and/or remand, and the Commissioner filed a cross-motion to
affirm and response. (ECF Nos. 15, 20, 21.) The undersigned
issued a report and recommendation that Plaintiff's
motion be granted; the Commissioner's cross-motion be
denied; and, that the matter be remanded for further
proceedings. (ECF No. 23.) Senior District Judge Howard D.
McKibben adopted and accepted the report and recommendation
and remanded the case to the Administrative Law Judge (ALJ)
for further proceedings. (ECF No. 24.) The parties
stipulated, and the court ordered an award of attorney's
fees and expenses under the Equal Access to Justice Act
(EAJA) in the amount of $6, 442.35. (ECF Nos. 25, 26) On
remand, the Commissioner granted Plaintiff's application
for benefits, entitling her to receive $61, 060 in
representation of Plaintiff was based on a contingency fee
agreement. Plaintiff's counsel filed this motion
requesting an award of attorney's fees in the amount of
$14, 000 under 42 U.S.C. § 406(b), with an offset of the
$6, 442.35 awarded under the EAJA. (ECF No. 29.)
court may award fees when it "renders a judgment
favorable to a claimant ... who was represented before the
court by an attorney ... 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[.]"42 U.S.C.
award under §406(b) compensates an attorney for all the
attorney's work before a federal court on behalf of the
Social Security claimant in connection with the action that
resulted in past-due benefits." Parrish v.
Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1220 (9th
fee is payable 'out of, and not in addition to, the
amount of [the] past-due benefits' awarded to the
claimant." Gisbrecht v. Barnhart, 535 U.S. 789,
796 (2002) (citing §406(b)(1)). "§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." Id. at 807.
conducting the fee analysis, the court should begin with the
contingent fee agreement and determine if it is within the 25
percent cap, and then test if for reasonableness.
Gisbrecht, 535 U.S. at 808. In other words,
"the district court must first look to the fee agreement
and then adjust downward if the attorney provided substandard
representation or delayed the case, or if the requested fee
would result in a windfall." Crawford, 586 F.3d
1142, 1151 (9th Cir. 2009) (citing Gisbrecht, 535
U.S. at 808).
has set forth factors that district courts should consider in
determining the reasonableness of the fee, including: (1) the
character of the representation (whether there was
substandard performance or delay attributable to the attorney
requesting the fees); (2) the results achieved; (3) whether
the benefits of the representation were out of proportion
with the time spent on the case; and, (4) the risk assumed by
counsel in accepting the case. Crawford, 586 F.3d at
151-52. "'[A]s an aid to the court's assessment
of the reasonableness of the fee yielded by the fee
agreement,' but 'not as a basis for satellite
litigation,' the court may require counsel to provide a
record of the hours worked and counsel's regularly hourly
billing charge for noncontingent cases." Id. at
1148 (quoting Gisbrecht, 535 U.S. at 808). The
attorney bears the burden of establishing that the fee sought
is reasonable. Id. at 1145, 1148 (citing
Gisbrecht, 535 U.S. at 807) (approving requests for
fees with an effective hourly rate of $659, $813 and $875);
Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D.
Cal. 2003) (noting that "[s]ince Gisbrecht ...
district courts generally have been deferential to the terms
of contingency fee contracts in § 406(b) cases,
accepting that the resulting de facto hourly rates
may exceeds those for non-contingency-fee arrangements"
because "courts recognize that basing a reasonableness
determination on a simple hourly rate is inappropriate when
an attorney is working pursuant to a reasonable contingency
contract for which there runs a substantial risk of
when fees are awarded under the EAJA, and fees are also
awarded under section 406(b)(1) in the same case, the court
must offset the EAJA award against the section 406(b) award.