Nos. 96-36262, 96-36263 | 9th Cir. | Apr 7, 1998
Appellee’s request for publication is granted. The Memorandum filed March 2, 1998, is redesignated as an authored Opinion by Judge Tashima.
OPINION
Carl Widrig and Jean Simpson (collectively “appellants”) appeal the district court’s awards of attorney’s fees in their Social Security cases.
After counsel successfully represented appellants in the district court in appealing the denials of their Social Security benefits, appellants sought attorney’s fees pursuant to 42 U.S.C. § 406(b)(1).
I. Reasonable Hourly Rate
This Circuit has adopted the “lodestar” method of calculating attorney’s fees under § 406(b)(1).
Appellants contend that declarations of the prevailing market rate in the relevant community are sufficient to establish a reasonable hourly rate, citing Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691" court="9th Cir." date_filed="1996-11-07" href="https://app.midpage.ai/document/guam-society-of-obstetricians-v-joseph-ada-729739?utm_source=webapp" opinion_id="729739">100 F.3d 691, 696 (9th Cir.1996), cert. denied, — U.S. -, 118 S. Ct. 367" court="SCOTUS" date_filed="1997-11-03" href="https://app.midpage.ai/document/milden-v-joseph-7393413?utm_source=webapp" opinion_id="7393413">118 S.Ct. 367, 139 L. Ed. 2d 286" court="SCOTUS" date_filed="1997-11-03" href="https://app.midpage.ai/document/taiwo-okusami-v-psychiatric-institute-of-washington-inc-9167255?utm_source=webapp" opinion_id="9167255">139 L.Ed.2d 286 (1997). While this may be true, appellants failed to submit “satisfactory evidence ... that the requested rates are in line with
In support of their claims, appellants submitted affidavits from Drew Johnson and Bruce Brewer, two attorneys with extensive experience in Social Security eases, who stated that $200 was a reasonable hourly rate for the services of appellants’ counsel. However, this does not establish the prevailing market rate. The only evidence of rates charged for similar services is that Johnson, who has twenty years’ experience in Social Security matters and also represents claimants in federal court, charges $150/hour. The Johnson and Brewer affidavits merely attest that $200 is a reasonable hourly rate for the services of appellants’ counsel. In light of the evidence submitted, the district court did not abuse its discretion in either case in finding the evidence insufficient to support an award based on an hourly rate of $200.
Appellants also contend that the district court abused its discretion because it failed to explain the reasons for its conclusions. Appellants rely on Jordan v. Multnomah County, 815 F.2d 1258" court="9th Cir." date_filed="1987-04-24" href="https://app.midpage.ai/document/gary-jordan-douglas-smalley-robert-curvey-raymond-wielebski-wallace-washington-richard-kienitz-herman-jackson-donald-cobbs-frank-jackson-v-multnomah-county-dennis-buchanan-486455?utm_source=webapp" opinion_id="486455">815 F.2d 1258 (9th Cir.1987), which reversed an award of attorney’s fees because the record contained no basis for the amount awarded. See id. at 1263. However, unlike Jordan, the district court in the instant cases did make findings regarding the sufficiency of the evidence submitted by appellants and explained the reasons for its conclusions. The court found that the Johnson and Brewer affidavits were insufficient to support an hourly rate of $200. In Widrig’s case, it also reasoned that counsel had recently been awarded fees at an hourly rate of $175, further justifying $175 as a reasonable lodestar rate. Thus, there was no abuse of discretion.
II. Contingency
Appellants correctly contend that contingency is a factor to be considered in determining a reasonable fee. See Allen, 48 F.3d 456" court="9th Cir." date_filed="1995-02-24" href="https://app.midpage.ai/document/plas-m-allen-v-donna-e-shalala-secretary-of-health-and-human-services-689990?utm_source=webapp" opinion_id="689990">48 F.3d at 460. However, the records show that the district court did consider contingency in making its decisions.
In Widrig, the court noted our admonition not to allow the contingency factor to make victorious claimants subsidize the claims of losing claimants, see id., and thus declined to increase the lodestar rate by a contingency enhancement. In Simpson, the court stated that it had “fully considered each of the factors noted in Kerr, as well as the arguments of counsel,” and concluded that there were no grounds to increase the lodestar rate, reasoning that the case was “a straightforward social security case.” Cf. Straw v. Bowen, 866 F.2d 1167" court="9th Cir." date_filed="1989-02-01" href="https://app.midpage.ai/document/marie-straw-v-otis-bowen-517698?utm_source=webapp" opinion_id="517698">866 F.2d 1167, 1170 (9th Cir.1989) (finding that contingency did not justify tripling standard rate because there was “no evidence that the ... cases were unusually risky”).
Once the court considers whether to enhance for contingency, the decision “[w]hether and to what extent this factor will affect the fee ultimately awarded is a matter within the district court’s discretion.” Allen, 48 F.3d 456" court="9th Cir." date_filed="1995-02-24" href="https://app.midpage.ai/document/plas-m-allen-v-donna-e-shalala-secretary-of-health-and-human-services-689990?utm_source=webapp" opinion_id="689990">48 F.3d at 460. Neither court abused its discretion in deciding not to enhance for contingency.
Appellants cite Fadhl v. City and County of San Francisco, 859 F.2d 649" court="9th Cir." date_filed="1988-10-04" href="https://app.midpage.ai/document/nancy-fadhl-plaintiff-appellee-v-city-and-county-of-san-francisco-defendant-appellant-512945?utm_source=webapp" opinion_id="512945">859 F.2d 649 (9th Cir.1988), for the proposition that we should examine the contingency of Social Security cases as a class rather than assessing the riskiness of a particular case. Fadhl, however, dealt with a fee-shifting statute, under which the prevailing party’s attorney’s fees are paid by the losing party. Id. at 650.
Appellants further contend that we should adopt the Second Circuit’s requirement that the district court “articulate, on the record, the weight assigned to the risks of contingency in its calculation of a fee.” Wells v. Bowen, 855 F.2d 37" court="2d Cir." date_filed="1988-08-09" href="https://app.midpage.ai/document/dale-wells-v-otis-bowen-510634?utm_source=webapp" opinion_id="510634">855 F.2d 37, 46 (2d Cir.1988). Second Circuit cases are inapposite, however, because the Second Circuit has adopted the contingency method of determining a reasonable fee under § 406(b)(1), whereas the Ninth Circuit uses the lodestar method. See Allen, 48 F.3d 456" court="9th Cir." date_filed="1995-02-24" href="https://app.midpage.ai/document/plas-m-allen-v-donna-e-shalala-secretary-of-health-and-human-services-689990?utm_source=webapp" opinion_id="689990">48 F.3d at 458. The contingency method requires the district court to treat the contingency agreement as presumptively reasonable. Therefore, this method necessarily requires the court to articulate its reasons, if it finds the agreement unreasonable. By contrast, under the lodestar method, contingency is one factor to consider in determining the fee award, but the district court is not required to articulate its reasons for factoring in contingency.
The district court did not abuse its discretion in basing the fee awards on an hourly rate of $175 or in declining to enhance the lodestar amount for contingency. The judgments of the district court are AFFIRMED.
. Widrig’s and Simpson’s appeals were consolidated.
. Although Widrig and Simpson are the named appellants, the real party in interest on these appeals is obviously their attorney.
. Section 406(b)(1) provides in part:
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 to which the claimant is entitled by reason of such judgment. ... 'In the case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.
42 U.S.C. § 406(b)(1).
. The other method is the "contingency” method, in which the court assumes that a contingency fee agreement is "presumptively reasonable," reducing the amount called for in the agreement only when the court finds that the amount is unreasonable. See Wells v. Sullivan, 907 F.2d 367" court="2d Cir." date_filed="1990-06-29" href="https://app.midpage.ai/document/dale-wells-william-hlywa-v-louis-w-sullivan-md-secretary-of-health-and-human-services-appeal-of-john-s-hogg-544249?utm_source=webapp" opinion_id="544249">907 F.2d 367, 371 (2d Cir.1990).
. Those factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 526 F.2d 67" court="9th Cir." date_filed="1976-04-26" href="https://app.midpage.ai/document/ed-kerr-v-screen-extras-guild-331410?utm_source=webapp" opinion_id="331410">526 F.2d at 70.
. Moreover, Jordan involved an award of attorney’s fees under 42 U.S.C. § 1988, and the Jordan court noted that the district court's discretion under § 1988 has been narrowly construed, a limitation not found in § 406(b)(1) cases. See Jordan, 815 F.2d 1258" court="9th Cir." date_filed="1987-04-24" href="https://app.midpage.ai/document/gary-jordan-douglas-smalley-robert-curvey-raymond-wielebski-wallace-washington-richard-kienitz-herman-jackson-donald-cobbs-frank-jackson-v-multnomah-county-dennis-buchanan-486455?utm_source=webapp" opinion_id="486455">815 F.2d at 1261.
. In Fadhl, a Title VII case, the fee award was made under 42 U.S.C. § 2000e-5(k).