The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PETER DAVID B.1,
Plaintiff, Civ. No. 3:23-cv-00398-AA
v. OPINION & ORDER
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________________
AIKEN, District Judge:
This case comes before the Court on Plaintiff’s Unopposed Motion for Attorney
Fees. ECF No. 14. The Commissioner has filed a Response to the Motion indicating
it does not object to the fee request. ECF No. 15. For the reasons set forth below, the
motion is GRANTED.
LEGAL STANDARD
Upon entering judgment in favor of a Social Security claimant who was
represented by an attorney, a 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 by reason of such judgment[.]” 42
U.S.C. § 406(b)(1)(A). Section 406(b) expressly requires any attorney’s fee awarded
1 In the interest of privacy, this opinion uses only first name and the initial of the last name of the
non-governmental party or parties in this case.
under that section to be payable “out of, and not in addition to, the amount of such
past due benefits.” Id.
In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court clarified that
§ 406 “does not displace contingent-fee agreements as the primary means by which
fees are set for successfully representing Social Security benefits claimants in court.”
Id. at 807. Courts must approve § 406(b) fee determinations by, first, determining
whether a fee agreement has been executed and then testing it for reasonableness.
Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc) (citing Gisbrecht,
535 U.S. at 808). “Agreements are unenforceable to the extent that they provide for
fees exceeding 25 percent of the past-due benefits.” Gisbrecht, 535 U.S. at 807. Even
within the 25 percent boundary, however, “the attorney for the successful claimant
must show that the fee sought is reasonable for the services rendered.” Id.
DISCUSSION
On July 14, 2023, the Court remanded this case for further proceedings based
on the stipulation of the parties. ECF Nos. 8, 9. On October 12, 2023, the Court
granted Plaintiff’s application for fees pursuant to the Equal Access to Justice Act
(“EAJA”) and awarded $631.22 in attorney fees. ECF No. 13. On remand, Plaintiff
was awarded past-due benefits in the amount of $46,784.25. Pl. Mot. 3. Plaintiff
seeks an award of $5,200.00 in attorney fees under § 406(b) to be reduced by the
previously awarded EAJA fees.
I. Contingency Fee Agreement
Under Gisbrecht, the Court’s first duty when considering whether to approve
a contingency fee agreement is to determine whether it is within the statutory 25%
cap. Gisbrecht, 535 U.S. at 807-08. The fee agreement between Plaintiff and
Plaintiff’s counsel contemplated a contingency fee award of up to 25% of past-due
benefits. Pl. Mot. Ex. 1. The fee sought by Plaintiff’s counsel is less than 25% of the
past-due benefits.
II. Reasonableness
Next, the Court must determine whether application of the fee agreement
yields reasonable results under the circumstances. Gisbrecht, 535 U.S. at 807-08. In
making this determination, the Court must recognize the “primacy of lawful attorney-
client fee agreements.” Id. at 793. However, although a contingency agreement
should be given significant weight in fixing a fee, the Court can depart from it if it
produces unreasonable results. Id. at 808. The burden rests with Plaintiff’s counsel
to establish the requested fee’s reasonableness. Id. at 807.
The Ninth Circuit has established four factors to guide the Court’s inquiry into
the reasonableness of a requested fee: (1) the character of the representation; (2) the
results achieved; (3) any delay attributable to the attorney in seeking the fee; and (4)
whether the benefits obtained were “not in proportion to the time spent on the case”
and raise the possibility that the attorney would receive an unwarranted windfall.
Crawford, 586 F.3d at 1151-53.
In this case, all four factors weigh in favor of granting Plaintiff’s motion.
Counsel ably represented Plaintiff and achieved a favorable result—remand and an
eventual award of benefits—in a reasonably expeditious manner. Although the fee is
large relative to the number of hours Plaintiff’s counsel expended on the case, the
Court observes that Plaintiff’s counsel has exercised good billing judgment and has
voluntarily sought less than 25% of the past-due benefits. The Court concludes that
the requested sum would not constitute a windfall. The Court will approve fees in
the full requested amount.
CONCLUSION
For the reasons set forth above, the Plaintiff’s motion for an award of attorney
fees, ECF No. 14, is GRANTED. Plaintiff’s counsel is awarded fees under 42 U.S.C.
§ 406(b) in the amount of $5,200.00. The Court previously awarded Plaintiff $631.22
in EAJA fees. When issuing the check for payment to Plaintiff’s attorney, the
Commissioner is directed to subtract this amount from the total award and send the
balance of $4,568.78, less any applicable processing or user fees prescribed by statute,
to Plaintiff’s attorney. Payment of this award should be made via check payable and
mailed to Plaintiff’s attorney Kevin Kerr, using the information on file with the
Agency. Any amount withheld after all administrative and court attorney fees are
paid should be released to Plaintiff.
It is so ORDERED and DATED this ___1__8_t_h____ day of November 2024.
/s/Ann Aiken
ANN AIKEN
United States District Judge