United States District Court, N.D. Oklahoma
OPINION AND ORDER TO GRANT PLAINTIFF'S MOTION FOR
ATTORNEY FEES
GERALD
B. COHN, UNITED STATES MAGISTRATE JUDGE
Before
the Court are Plaintiff's Motion for Attorney Fees
pursuant to 42 U.S.C. § 406(b). (Doc. 33). In
Plaintiff's Motion, Plaintiff's counsel seeks
approval of an attorney fee award of $15, 000.00 pursuant to
42 U.S.C. § 406(b) and the terms of the contingency fee
contract between Plaintiff and counsel. (Doc. 33).
I.
STANDARD OF REVIEW
Unlike
fees awarded under other statutes such as the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, fees
under 42 U.S.C. § 406(b) are paid from the
claimant's benefits, rather than from agency funds, based
on a contract between the claimant and the claimant's
attorney. Pursuant to 42 U.S.C. § 406(b), a district
court must independently assess the reasonableness of the
terms in contingent-fee agreements. Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002). § 406(b)
“calls for court review of such arrangements as an
independent check, to assure that they yield reasonable
results in particular cases, ” and to guard against
windfalls for lawyers. Id. at 807-08. Decisions on
motions for § 406(b) fees “are committed to the
district court's sound discretion.”
McGraw, 450 F.3d at 505. § 406(b) contemplates
awarding a reasonable fee only for work performed before the
court, not for work performed before the agency. See
McGraw, 450 F.3d at 498. Thus, in considering the
reasonableness of a § 406(b) request, the court should
not consider time enumerated for any work that was performed
before the administrative agency. Additionally, where a
plaintiff is also awarded attorney fees under the EAJA,
plaintiff's attorney must refund the lesser of the two
fees to plaintiff. See Gisbrecht, 535 U.S. at 796;
Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
1986).
II.
BACKGROUND AND COMMISSIONER RESPONSE
In this
case, the Commissioner issued to Plaintiff a Notice of Award
on October 1, 2017, showing Plaintiff and his family were
entitled to past due benefits, of which the Commissioner
withheld 25 percent, or a total of $24, 637.00 ($19, 120.00
from Plaintiff's past due benefits and $5, 517.00 from
his family's past due benefits), for the payment of
attorney fees (see Doc. 33-2 at 1, 3). Here, counsel
requests $15, 000.00 in fees for 20.1 hours of attorney work
and 5.8 hours of paralegal work before the court
(see Doc. 33 at 2, 6; Doc. 33-4). Although
Plaintiff's motion indicates 5.2 paralegal hours (see
Doc. 33 at 6), counsel's billing timesheets indicate a
total of 5.8 paralegal hours were expended in litigating this
matter (see Doc. 25-1; Doc. 33-4). In her response,
the Commissioner notes she is “not a party to §
406(b) fee awards and generally takes no position on such
petitions … but rather she defers to the Court's
sound discretion as to the reasonableness of the fee
award.” (Doc. 35).
However,
the Commissioner states in calculating the effective hourly
rate for the court's reasonableness consideration,
Plaintiff applies a multiplier to the paralegal fees
(see Doc. 33 at 6- 7). Commissioner states Plaintiff
cites no authority for doing so and asserts the court should
award paralegal fees only at paralegal market rates.
See, e.g., La Plant v. Berryhill,
No. C14-1143-JCC, 2017 WL 823289, at *3 (W.D. Wash. Mar. 2,
2017) (unpublished) (“As to the paralegal hours,
however, the Court does not find it appropriate to apply the
. . . multiplier.” (citing Chandler v. Sec'y of
Dep't of Health & Human Servs., 792 F.2d 70, 73
(6th Cir. 1986) (awarding paralegal fees under § 406(b)
but only at paralegal rates)). Here, Plaintiff's billing
timesheets and EAJA filings indicate counsel's firm
billed paralegal work at $100 per hour from 2011 through
2015, and at $120 per hour beginning in 2016 (see
Doc. 33-4; Doc. 25 at 8-9). This calculates to a total of
$680.00 for paralegal work (0.8 paralegal hours billed in
2015 at the rate of $100 per hour and 5 paralegal hours
billed in 2016 and 2017 at the rate of $120 per hour)
(see Doc. 25-1; Doc. 33-4). Thus, for purposes of
determining the reasonableness of the fees sought for the
20.1 hours of attorney work in this case, Commissioner argues
the court should reduce the total amount of § 406(b)
fees to $680.00 in paralegal fees (versus the $1, 404.00
suggested by Plaintiff's counsel when improperly using a
multiplier). Less the $680.00 (for the 5.8 hours of paralegal
work billed at the market rate), counsel is requesting $14,
320.00 in § 406(b) fees for 20.1 hours of attorney work.
Thus, counsel is effectively requesting attorney fees at the
rate of $712.44 per hour.
III.
ANALYSIS
The
court located few social security disability cases analyzing
paralegal hours within attorney fee awards. A district court
in Colorado found:
To determine a reasonable fee request, a court must begin by
calculating the “lodestar amount.” Robinson
v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
The lodestar amount is the “number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). With respect to assessing the hours claimed, the
Supreme Court has found that certain tasks are
non-compensable because they are “purely clerical or
secretarial tasks [which] should not be billed at a paralegal
rate, regardless of who performs them.” Missouri v.
Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989).
Here, plaintiff seeks an award of fees for 0.2 hours related
to service of process. Such time is not compensable. See
Jenkins, 491 U.S. at 288 n.10. The Court finds that the
remainder of the hours claimed are reasonable. In addition,
the Court notes that Mr. Seckar undertook a substantial risk
of loss in connection with the case, devoted considerable
time and effort in presenting plaintiff's position, and
obtained a favorable result for plaintiff.
Valenzuela v. Colvin, 2013 WL 1786501, at *2-3 (D.
Colo. Apr. 25, 2013). In this case, Plaintiff's counsel
submitted billing timesheets indicating clerical time
expended, but counsel did not request attorney fees for
clerical hours. See Doc. 33-4. Plaintiff's
counsel solely requested attorney fees for paralegal and
attorney time spent litigating the case. See id. In
a district court in Oregon, the court found:
In those cases that have dealt with the issue of paralegal
time, some have excluded the time completely; see Roark
v. Barnhart, 221 F.Supp.2d 1020, 1026 (W.D. Mo. 2002);
and others have considered paralegal time in assessing the
overall reasonableness of the fee request. See Siraco v.
Astrue, 806 F.Supp.2d 272, 278-79 (D. Me. 2011) (noting
that the question is not whether paralegal time is
compensable or what multiplier for paralegal time is
appropriate, but whether the fee is reasonable in light of
the legal services provided); Crawford v. Astrue,
586 F.3d 1142, 1151-53 (9th Cir. 2009) (repeatedly
referencing paralegal time, but nowhere stating how paralegal
services should be accounted for, and discouraging a lodestar
based approach). This court adopts the approach set forth in
Siraco, whereby the results achieved are compared
with the services provided to reach a reasonable fee. Indeed,
a discussion of an appropriate paralegal fee versus attorney
fee creates the risk that this court will overly rely on a
lodestar approach when the focus should be on the
contingent-fee agreement, adjusted for reasonableness.
Here, the court concludes that the requested fee is
unreasonable. This is driven by two primary factors. The
first is that the case was not particularly complex or time
consuming and the second is that the retroactive benefits
recovered were quite large. The combination of these two
factors results in a windfall. In short, “the benefits
are large in comparison to the amount of time counsel [and
paralegal] spent on the case [and] a downward adjustment is
... in order.” Gisbrecht, 535 U.S. at 808.
While giving primacy to the ...