Rauh v. Commissioner of Social Security Administration , 548 F. App'x 469 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KURT RAUH, No. 12-35428
Plaintiff - Appellant, D.C. No. 3:10-cv-00659-HA
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Tim Wilborn, the attorney of record for plaintiff Kurt Rauh and the real-
party-in-interest, appeals from the district court’s order denying in part his motion
for attorney’s fees under 42 U.S.C. § 406(b) based on a contingency fee agreement.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion. Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc).
We reverse and remand.
The district court abused its discretion by reducing Wilborn’s attorney’s fees
to almost half the percentage specified in his fee agreement on the basis of its
concern that Wilborn might receive a windfall. Wilborn achieved a favorable
result in a case that was riskier than average, the remaining factors supported the
fee request, and the fees would not be deducted from the client’s benefits award.
See id. at 1151-53 (reversing reduction of attorney’s fees where counsel assumed
significant risk in accepting the cases, and no other factors warranted a reduction);
see also Gisbrecht v. Barnhart, 535 U.S. 789, 793, 808 (2002) (courts must respect
“the primacy of lawful attorney-client fee agreements,” and then reduce fees, if
necessary, due to the character of counsel’s representation and the results
achieved). Moreover, in reasoning that counsel might get a windfall because he
did no substantive work after filing the opening brief, the district court may have
overlooked his significant work beforehand to obtain a favorable decision.
Therefore, we remand to allow the district court to redetermine a reasonable
amount of attorney’s fees.
REVERSED and REMANDED.
2 12-35428