               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0834n.06

                                       Case No. 14-3044

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                           FILED
PATRICK S. LASLEY,                                )                   Nov 04, 2014
                                                  )               DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                       )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE SOUTHERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY,                  )       OHIO
                                                  )
       Defendant-Appellee.                        )




       BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges

       COOK, Circuit Judge. Mark Naegel, counsel for a prevailing social security disability

benefits applicant, appeals the district court’s order awarding significantly reduced attorneys’

fees under 42 U.S.C. § 406(b). He argues that the court should have approved his request for

$26,049.73—the 25-percent contingency fee accepted by his client and permitted by statute.

The Commissioner of Social Security, representing the interests of the claimant whose benefits

pay for the fees, see Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002) (acknowledging the

Commissioner’s trustee-like role), opposed this sum as a “windfall” in light of counsel’s 35.5

hours of work.     The district court agreed.    Adopting the magistrate judge’s report and

recommendation, the court rejected the contingency fee as unreasonably high and awarded
Case No. 14-3044
Lasley v. Comm’r of Soc. Sec.


$12,780—the amount proposed by the Commissioner. Satisfied that the court acted within its

discretion, see Damron v. Comm’r of Soc. Sec., 104 F.3d 853, 856 (6th Cir. 1997), we AFFIRM.


       When a district court renders a favorable judgment to a social security claimant, § 406(b)

permits a district court to award “a reasonable [attorneys’] fee . . . not in excess of 25 percent,”

payable “out of . . . [the claimant’s] past-due benefits.” 42 U.S.C. § 406(b)(1)(A). In Gisbrecht

v. Barnhart, the Supreme Court concluded that the statute’s allowance of “a reasonable fee”

permits contingency fees, but “calls for court review of such arrangements as an independent

check, to assure that they yield reasonable results in particular cases.” 535 U.S. at 807. “Within

the 25 percent boundary,” prevailing counsel bears the burden of “show[ing] that the fee sought

is reasonable for the services rendered.” Id.


       Counsel correctly notes that our precedent accords a rebuttable presumption of

reasonableness to contingency-fee agreements that comply with § 406(b)’s 25-percent cap. E.g.,

Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 421 (6th Cir. 1991); Rodriquez v.

Bowen, 865 F.2d 739, 746 (6th Cir. 1989) (en banc). Hayes modified this presumption by setting

a “floor” for court review of contingency fees: “a hypothetical hourly rate that is less than twice

the standard rate is per se reasonable, and a hypothetical hourly rate that is equal to or greater

than twice the standard rate may well be reasonable.” 923 F.2d at 422. Counsel claims that the

district court committed legal error by failing to recognize this presumption. Not so.


       The court cited Hayes for “the presumed reasonableness” of contingency fees, generally,

and sub-floor fees, specifically. Still, counsel objects that the court betrayed Hayes’s “floor”

analysis by substituting Hayes’s permissive language with mandatory language. Cf. 923 F.2d at

422 (“If the calculated hourly rate is above this [double-the-standard-rate] floor, then the court

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may consider arguments designed to rebut the presumed reasonableness of the attorney’s fee.”

(emphasis added)). To the contrary, the court adhered to Hayes’s teaching by acknowledging

that “a hypothetical hourly rate that is more than twice the standard rate will not automatically be

held to constitute an unreasonable ‘windfall.’”        Nothing in Hayes prevents a court from

considering arguments rebutting the presumption of reasonableness.


       Nor, for that matter, does the Supreme Court’s decision in Gisbrecht, which elides strict

presumptions altogether. Compare Gisbrecht, 535 U.S. at 793 (reversing because the appellate

court categorically “reject[ed] the primacy of lawful attorney-client fee agreements”), with id. at

807 n.17 (quoting the claimants’ concession that § 406(b) “does not create any presumption in

favor of the agreed upon amount”). Instead, Gisbrecht instructs reviewing courts to “look[] first

to the contingent-fee agreement, then test[] it for reasonableness.” Id. at 808. Importantly, the

Court approved of reducing fees to avoid windfalls and expressly authorized district courts to

consider the attorney’s hours and standard rates in reviewing the reasonableness of

contingency fees. The Court instructed as follows:


       If the benefits are large in comparison to the amount of time counsel spent on the
       case, a downward adjustment is similarly in order. See [Rodriquez, 865 F.2d at
       747] (reviewing court should disallow “windfalls for lawyers”); [Wells v.
       Sullivan, 907 F.2d 367, 372 (2d Cir. 1990)] (same). In this regard, the court may
       require the claimant’s attorney to submit, not as a basis for satellite litigation, but
       as an aid to the court’s assessment of the reasonableness of the fee yielded by the
       fee agreement, a record of the hours spent representing the claimant and a
       statement of the lawyer’s normal hourly billing charge for noncontingent-fee
       cases. See Rodriquez, 865 F.2d at 741.
Gisbrecht, 535 U.S. at 808.


       The district court followed that approach here.           It began by acknowledging the

contingency-fee agreement and § 406(b)’s 25-percent ceiling. It then considered the effective

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hourly rate “as one relevant factor in determining the reasonableness” of the contingency fee.

Here, the effective hourly rate of $733.80 ($26,049.73 ÷ 35.5 hours) grossly exceeded—indeed,

more than quadrupled—the standard rates applied to social security fee requests in the Southern

District of Ohio. See, e.g., Jones v. Astrue, No. 3:09–cv–80, 2012 WL 3251865, at *3 (S.D.

Ohio Aug. 8, 2012) (Report & Recommendation) (using “conservative” hourly rate of $180),

adopted, 2012 WL 3763909; Edwards v. Comm’r of Soc. Sec., No. 1:08–cv–815, 2011 WL

1002186, at *1 (S.D. Ohio Mar. 16, 2011) (relying on $165 hourly rate approved in counsel’s

application for fees under the Equal Access to Justice Act as standard rate for assessing the

reasonableness of the contingency fee under § 406(b)). The district court considered other

factors, too, including counsel’s delay in filing the § 406(b) motion, the Commissioner’s

opposition to the fee, and the “brevity” and “relative simplicity” of the representation.


       Counsel neither presents evidence of a contrary standard rate nor disputes the district

court’s finding regarding the relative complexity of this litigation compared to other social

security cases. The court thus acted within its discretion in determining that counsel failed to

carry the burden of demonstrating the contingency fee’s reasonableness.              See Gisbrecht,

535 U.S. at 807. Because counsel advances no separate argument challenging the degree of the

fee reduction, we AFFIRM the district court’s fees award.




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