United States District Court, W.D. Washington
GERALD E. LA PLANT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ON MOTION FOR ATTORNEY FEES
C. Coughenour UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Gerald
LaPlant's motion for attorney fees pursuant to 42 U.S.C.
§ 406(b) (Dkt. No. 31). Under § 406(b)(1),
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the 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.
agreed to pay Counsel 25% of his past-due benefits if his
Social Security appeal was successful. (Dkt. No. 31-4 at 1.)
LaPlant received $86, 949.00 in past-due benefits.
(See Dkt. No. 31-1 at 1.) Accordingly,
Counsel asks this Court to authorize an attorney fee of $21,
Commissioner agrees that an award of fees is appropriate but
argues that the amount requested is not reasonable. (Dkt. No.
37 at 2.) As the Commissioner notes, after LaPlant filed his
opening brief, the parties stipulated to a remand for further
administrative proceedings. (Dkt. No. 23; see also
Dkt. Nos. 25, 26.) Counsel thus incurred only 16 hours of
attorney time and 2.3 hours of paralegal time. (See
Dkt. No. 31-1 at 6.) The Commissioner argues that the
resulting hourly fee-roughly $1, 200.00-is unreasonable.
(Dkt. No. 37 at 3.)
maintains that his request is nonetheless reasonable, taking
into account the fact that the fee agreement between him and
LaPlant lawfully authorizes such an award; the inherent risk
in representing parties on a contingency basis; Counsel's
extensive experience and expertise; and the social policy
behind contingent fees in Social Security
cases. (Dkt. No. 31-1 at 6.)
evaluating a fee request under § 406(b), it is
inappropriate for the Court to apply the lodestar method.
Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir.
2009). As the Crawford court explains, the lodestar
“under-compensates attorneys for the risk they assume
in representing [Social Security] claimants” and
“ultimately works to the disadvantage of [Social
Security] claimants who need counsel to recover any past-due
benefits at all.” Id. Instead, the Court looks
first to the contingent-fee agreement, then tests it for
reasonableness. Gisbrecht v. Barnhart, 535 U.S. 789,
808 (2002). “If the benefits are large in comparison to
the amount of time counsel spent on the case, a downward
adjustment is . . . in order.” Id.; see
also Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir.
1989) (finding reduction of fee award appropriate where
counsel would “enjoy a windfall because of either an
inordinately large benefit award or from minimal effort
expended”). However, “basing a reasonableness
determination on a simple hourly rate basis is inappropriate
when an attorney is working pursuant to a reasonable
contingency contract for which there runs a substantial risk
of loss.” Hearn v. Barnhart, 262 F.Supp.2d
1033, 1037 (N.D. Cal. 2003).
LaPlant agreed to pay Counsel 25% of his past-due benefits, a
typical arrangement in Social Security appeals. (Dkt. No.
31-1 at 1.) Given the benefits awarded, Counsel
seeks fees of $21, 737.25 for 16 hours of attorney time and
2.3 hours of paralegal time. (Id. at 1, 6.) This
equates to an hourly rate of $1, 187.83.
this hourly rate exceeds the rate awarded in some other
Social Security cases across the country. See, e.g.,
Hearn, 262 F.Supp.2d at 1037-38 (awarding fees of
$25, 132.50 at a rate of $456.95 per hour); Coppett v.
Barnhart, 242 F.Supp.2d 1380, 1384 (S.D. Ga. 2002)
(awarding fees of $6, 554.12 at a rate of $350.49 per hour);
Martin v. Barnhart, 225 F.Supp.2d 704, 705-07 (W.D.
Va. 2002) (awarding fees of $10, 189.50 at a rate of $605.80
per hour); Hussar-Nelson v. Barnhart, 2002 WL
31664488 at *3 (N.D. Ill. Nov. 22, 2002) (awarding fees of
$19, 425.25 at a rate of $393.00 per hour). However, as the
Hearn court makes clear, it is inappropriate to
consider only the simple hourly rate in determining
Counsel has been granted fee awards with similar or higher
hourly rates in other cases in this district. See,
e.g., Larsen v. Colvin, C13-2018-MJP, Dkt. Nos.
29-1, 31 (W.D. Wash. Nov. 20, 2015) (awarding fees of $44,
558.00 at a rate of $1, 217.43 per hour); Savidge v.
Colvin, C10-2020-RAJ, Dkt. Nos. 22-1, 24 (W.D. Wash.
July 8, 2015) (awarding fees of $28, 451.00 at a rate of $1,
663.80 per hour); Hart v. Astrue, C10-5788-RBL, Dkt.
Nos. 33-1, 35 (W.D. Wash. Mar. 26, 2014) (awarding fees of
$33, 000.00 at a rate of $1, 650.00 per hour); Kerrigan
v. Astrue, C09-0411-RAJ, Dkt. Nos. 29-2, 36 (W.D. Wash.
June 30, 2011) (awarding fees of $33, 702.75 at a rate of $1,
446.47 per hour); Estell v. Astrue, C08-1161-JCC,
Dkt. Nos. 23-2, 29 (W.D. Wash. Dec. 10, 2010) (awarding fees
of $22, 951.00 at a rate of $1, 261.04 per hour). Thus, the
high hourly rate of which the Commissioner complains,
(see Dkt. No. 37 at 3), does not persuade the Court
that the amount requested is unreasonable.
parties cite Brown v. Astrue, 2010 WL 605301 (W.D.
Wash. Feb. 19, 2010), which the Court finds instructive. In
Brown, the parties similarly stipulated to a remand
for further proceedings and the plaintiff received a
favorable outcome. Id. at *1. Counsel requested fees
of $15, 767.00-25% of the past due benefits-for 11.55 hours
of attorney time. Id. at *7. The Court noted that
the amount requested would result in a fee equivalent to 4.65
times counsel's hourly rate for non-contingent cases.
Id. at *10. Because the case was not particularly
complex and the administrative record was not particularly
long, the Court determined that a downward adjustment was
appropriate. Id. at *7, 10. The Court reduced the
amount to $10, 000.00, or 2.95 times counsel's hourly
rate for non-contingent cases. Id. at *10.
Counsel's fee request is equivalent to 3.23 times the
hourly rate for non-contingent cases. Considering this similarity
to the multiplier in Brown, as well as the fee
agreement in this case, the risk assumed by Counsel in
representing LaPlant on a contingent basis, and the numerous
similar awards granted to Counsel in this district, the Court
concludes that no windfall exists and the amount of fees
requested is reasonable as to the attorney hours.
the paralegal hours, however, the Court does not find it
appropriate to apply the 3.23 multiplier. See Chandler v.
Sec'y of Dep't of Health and Human Servs., 792
F.2d 70, 73 (6th Cir. 1986) (awarding paralegal fees under
§ 406(b) but only at paralegal rates); Roark v.
Barnhart, 221 F.Supp.2d 1020, 1026 (W.D. Mo. 2002)
(declining to award fees for hours worked by paralegal);
Jimenez v. Astrue, 2008 WL 2684619 at *1, 3 (C.D.
Cal. July 8, 2008) (finding hourly rate of $366.95 for
paralegal services reasonable where total fees request
amounted to less than 12.5% of past-due benefits award).
the motion for fees (Dkt. No. 31) is GRANTED in part. The
Court AWARDS Counsel the amount sought for attorney hours at
¶ 3.23 multiplier: $21, 172.65. However, the Court
declines to apply the 3.23 multiplier to paralegal hours and
awards only the amount actually incurred: $172.50. Together,
this amounts to a § 406(b) award of $21, 345.15. The
Court further ORDERS Counsel to reimburse LaPlant the amount
of $3, 213.43, the attorney fees LaPlant paid counsel ...