Plas M. Allen v. Donna E. Shalala, Secretary of Health and Human Services

48 F.3d 456 63 USLW 2541 , 47 Soc.Sec.Rep.Ser. 34, Unempl.Ins.Rep. (CCH) P 14536B Plas M. ALLEN, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, * Defendant-Appellee. No. 93-35124. United States Court of Appeals, Ninth Circuit. Submitted Sept. 16, 1994 ** . Decided Feb. 24, 1995. Ralph Wilborn, Eugene, OR, for plaintiff-appellant. Ernest J. Ishem, Assistant Regional Counsel, Seattle, WA, for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before: THOMPSON and LEAVY, Circuit Judges, and A. WALLACE TASHIMA, District Judge. *** Opinion by Judge TASHIMA; Dissent by Judge LEAVY. A. WALLACE TASHIMA, District Judge: This is an appeal from the district court's decision awarding to the attorney for appellant Plas M. Allen (Allen or appellant) attorney's fees far lower than the fees provided under the 25 percent contingent fee agreement between appellant and his attorney. Appellant argues that the district court erred by computing the fee under the lodestar method, with no weight given to the contingent fee agreement. We have jurisdiction to review the district court's decision pursuant to 28 U.S.C. Sec. 1291 .…

Opinion by Judge TASHIMA; Dissent by Judge LEAVY.

This is an appeal from the district court’s decision awarding to the attorney for appellant Pías M. Allen (Allen or appellant) attorney’s fees far lower than the fees provided under the 25 percent contingent fee agreement between appellant and his attorney. Appellant argues that the district court erred by computing the fee under the lodestar method, with no weight given to the contingent fee agreement. We have jurisdiction to review the district court’s decision pursuant to 28 U.S.C. § 1291 .

BACKGROUND

Allen applied for Social Security disability benefits in 1985. His initial application was denied. He subsequently refiled and, following numerous hearings and reviews, including an appeal to the district court, the Appeals Council found Allen to be disabled.

Appellant then moved in the district court for a fee award, pursuant to 42 U.S.C. § 406 (b)(1), which provides:

42 U.S.C. § 406 (b)(1). The district court awarded fees at an hourly lodestar rate of $150, giving no weight to the contingent fee agreement between Allen and his attorney. 1 This appeal followed.

STANDARD OF REVIEW

We review the amount of attorney’s fees…

dissenting.

Judge Hogan followed the method of calculating attorney’s fees by starting with the lodestar as required by Starr v. Bowen, 831 F.2d 872 (9th Cir.1987), and Straw v. Bowen, 866 F.2d 1167 (9th Cir.1989). He then considered the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975), which include contingency fee contracts as a consideration. In light of Judge Hogan’s analysis, I cannot concur in the majority’s decision to remand for a recalculation.

The majority remands, not because the district court incorrectly departed from our precedent by considering the contingency fee contract presumptively reasonable, but on the basis that the district court failed to consider the agreement at all. Specifically, the majority finds that the “district court apparently based its decision on a belief that it is impermissible to afford any consideration at all to contingency.” Op. at 460. The majority bases its conclusion on the fact that the district court cited to fee-shifting eases, although § 406(b)(1) is not a fee-shifting statute. Id. at 460. The district court’s analysis, however, clearly distinguished between fee-shifting and § 406(b)(1) eases.…