Eastes v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christa Eastes, No. CV-18-00013-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is the motion for an award of attorneys’ fees under 42 16 U.S.C. § 406(b), submitted by Plaintiff’s counsel, Eric Slepian (“Counsel”), which the 17 Commissioner does not oppose.1 (Doc. 30.) Counsel seeks $13,394.75 in § 406(b) fees, 18 which equates to 25% of Plaintiff’s past-due benefits. (Doc. 30 at 1-2; Doc. 31-1 at 3.) 19 The client-attorney fee agreement provides for a contingency fee—Plaintiff agreed 20 that the attorneys’ fee would be 25% of all past-due benefits awarded to her. (Doc. 30-1 21 at 8.) This is unsurprising, as 25% contingency fee agreements are nearly ubiquitous in 22 the context of social security appeals. Gisbrecht v. Barnhart, 535 U.S. 789, 802–04 23 (2002). 24 Section 406(b) “calls for court review” of contingency fee agreements. Id. at 807– 25 08. “Congress has provided one boundary line: Agreements are unenforceable to the 26 extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id. 27 1 The Commissioner “has no direct financial stake in the answer to the § 406(b) question” because the fees, if granted, will be taken out of Plaintiff’s past-due benefits, 28 and therefore the Commissioner’s role “resembl[es] that of a trustee for the claimants.” Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). || “Within the 25 percent boundary, as petitioners in this case acknowledge, the attorney for 2|| the successful claimant must show that the fee sought is reasonable for the services || rendered.” Jd. 4 The Court must determine whether it is appropriate to reduce Counsel’s recovery 5 || “based on the character of the representation and the results the representative achieved” 6|| by assessing, for example, whether Counsel is “responsible for delay” or whether “the 7|| benefits are large in comparison to the amount of time counsel spent on the case.”” Jd. at 808. “In this regard, the court may require the claimant’s attorney to submit, not as a 9|| basis for satellite litigation, but as an aid to the court’s assessment of the reasonableness || of the fee yielded by the fee agreement, a record of the hours spent representing the 11 || claimant and a statement of the lawyer’s normal hourly billing charge for noncontingent- fee cases.” Id. 13 The Court will require Counsel to produce a record of the hours spent representing Plaintiff to aid in the Court’s reasonableness assessment. 15 Accordingly, 16 IT IS ORDERED that by March 13, 2020, Counsel shall file a supplement to the || request for fees containing a record of the hours spent representing Plaintiff. 18 Dated this 27th day of February, 2020. 19 20 fa 7 71 ~ "Dominic W. Lanza 22 United States District Judge 23 24 25 This determination does not equate to use of the lodestar method. Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (“The lodestar method under-compensates attorneys for the risk they assume in representing SSDI claimants and ordinarily produces 27 remarkably smaller fees than would be produced by starting with the contingent agreement. A district court’s use of the lodestar to determine a reasonable fee thus u imately works to the disadvantage of SSDI claimants who need counsel to recover any past-due benefits at all.”). _2-