FILED
NOT FOR PUBLICATION MAY 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RACHEL M. STOKES, No. 10-35628
Plaintiff - Appellant, D.C. No. 3:08-cv-01209-PK
v.
MEMORANDUM *
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted May 2, 2011 **
Portland, Oregon
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
Alan Graf, an attorney and the real-party-in-interest in this appeal, appeals
the district court’s order which granted in part and denied in part Graf’s motion for
*
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).
attorneys’ fees. We have jurisdiction over this appeal pursuant to 28 U.S.C. §
1291, and we reverse and remand.1
The district court based its decision to reduce the fee award from the 22% of
past-due benefits requested by Graf to 15% of past-due benefits on two grounds:
(1) delays caused by Graf; and (2) the size of the past-due benefits recovered in
relation to a reasonable estimate of the complexity of the representation and the
number of hours necessary fairly to conduct that representation (hereinafter
referred to as the fee’s “proportionality”).
The district court’s first ground—the 60 days of delay caused by Graf—is
illogical. District courts may reduce fees due to attorney delay so that “the
attorney will not profit from the accumulation of benefits during the pendency of
the case in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). Graf’s
voluntary 3% reduction—from the contractual 25% of past-due benefits to a
requested 22% of past-due benefits—reduced the fee requested by $2,011. The 60
days of delay Graf caused in the district court added two months of past-due
benefits at $1140.20 per month; taking 25% of this amount would have increased
1
Because the parties are familiar with the facts, we recite them here only as
necessary to explain our decision.
2
his fee by only $570. Therefore, the district court abused its discretion in basing
any part of its reduction of the award on delay.
The district court was within its discretion in reducing the fee based on the
fee’s proportionality. The district court has a duty to perform an “independent
check” “to assure that [the fees] yield reasonable results in particular cases.” Id. at
807 (emphasis added). The district court in this case found that an effective hourly
rate of $453.75 was unreasonable in light of the fact that the district court
proceedings were largely uncontested by the Social Security Commissioner. The
record supports that this was a “relatively simple” litigation coupled with a
significant recovery of past-benefits. Thus, the district court did not abuse its
discretion in reducing the fee amount on this ground.
Graf contends that in light of the high risk involved in social security cases,
the district court abused its discretion in reducing the fee percentage. This court
has stated that “the district court should look at the complexity and risk involved in
the specific case at issue to determine how much risk the firm assumed in taking
the case.” Crawford v. Astrue, 586 F.3d 1142, 1153 (9th Cir. 2009) (en banc)
(emphasis added). Graf completely ignores this guidance, instead discussing
general policy considerations and the generally high risk in litigating social
security cases. At no point does Graf make any specific contentions with respect
3
to this case’s complexity and risk. Moreover, the district court considered the risks
of this specific case and stated that “[u]nder the circumstances presented in this
case, this court concludes that the concerns outlined above about proportionality
are not allayed by the risks undertaken in representing this plaintiff.” Therefore,
there is no basis for holding the district court abused its discretion in reducing
Graf’s fee award in light of the complexity and risk involved in this case.
Therefore, this case is REVERSED and REMANDED. On remand, the
district court shall determine a reasonable fee starting with the fee voluntarily
reduced by Graf—22% of past-due benefits—and without additional reduction due
to delay.
4