United States v. 2020-12-11 | 19-55935 | CANDACE BIGGERSTAFF V. ANDREW SAUL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CANDACE ROBE BIGGERSTAFF,

Plaintiff,
v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant-Appellee,
v.

DENISE BOURGEOIS HALEY,

Real-party-in-interest-
Appellant.

No. 19-55935

D.C. No. 2:15-cv-00853-JC

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Jacqueline Chooljian, Magistrate Judge, Presiding

Submitted December 8, 2020
**

Pasadena, California

Before: KELLY
***
, GOULD, and R. NELSON, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable Paul J. Kelly Jr., United States Circuit Judge of the United
States Court of Appeals for the Tenth Circuit, sitting by designation.
FILED

DEC 11 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
Real-party-in-interest Denise Haley appeals the reduction of her attorney’s
fees award in this successful social security benefits case. We have jurisdiction
under 28 U.S.C. § 1292, and we affirm.
As payment for representing social security claimants, counsel can charge “a
reasonable fee for such representation, not in excess of 25 percent of the total of
the past-due benefits” awarded to the claimant. 42 U.S.C. § 406(b)(1)(A). These
fees are usually set in contingency-fee agreements and are payable from past-due
benefits awarded to the claimant. Gisbrecht v. Barnhart, 535 U.S. 789, 802–03
(2002). Though the contingency fee here fell within the 25 percent boundary, the
district court properly performed the required “independent check” of the
requested fee “to assure that [it] yield[ed] reasonable results” and, when found
unreasonable, “appropriately reduced the [fee] . . . based on the character of the
representation and the results the representative achieved.” Id. at 807–08.
In assessing the reasonableness of the fee, the district court correctly began
with the contingency fee agreement and examined the character of Haley’s
representation and the results achieved. Acknowledging that Haley seemed
competent and did not give substandard performance or cause undue delay, the
district court concluded that “the benefits [we]re large in comparison to the amount
of time counsel spent on the case” such that the fee was unreasonable and “a
downward adjustment” was “in order.” Id. at 808. In reaching this conclusion, the

3
district court appropriately started its analysis with the contingency fee
arrangement, noting that Haley’s client recovered $260,436 in past-due benefits,
the contracted contingency fee amounted to $65,109, but Haley spent only 18.2
counsel hours and 5.2 paralegal hours on the case. See id.; Crawford v. Astrue,
586 F.3d 1142, 1149 (9th Cir. 2009) (en banc).
Because Haley reduced the contingency fee to $50,000, the district court
calculated the requested contingency fee’s de facto hourly rate by dividing
counsel’s requested fee by counsel and paralegal time spent on the case, resulting
in de facto hourly rates of $2,747.25 for counsel time and $2,136.75 for combined
counsel and paralegal time.
1
This is exactly the type of analysis allowed under
Gisbrecht, which permits courts to consider “not as a basis for satellite litigation,
but as an aid to the court’s assessment of the reasonableness of the fee . . . a record
of the hours spent representing the claimant[.]” 535 U.S. at 808.
During its reasonableness assessment, the district court also correctly
examined the complexity and risk involved in Haley’s representation. As the
district court explained, the underlying issues were not complex but rather
common in social security disability cases, and Haley did not demonstrate the

1
In contrast, under the lodestar method, a reasonable fee can be determined
when “the number of hours reasonably devoted to each case [i]s multiplied by a
reasonable hourly fee.” Gisbrecht, 535 U.S. at 797–98. But, by calculating the de
facto hourly rate of the requested contingency fees, the district court did not use the
lodestar method, rather it compared the time spent to the fee requested under the
contingency fee arrangement.

4
estimated likelihood of success when first retained. See Crawford, 586 F.3d at
1153.
Nor did the district court err by using the fees awarded in other social
security cases and the consumer law attorney median rate as aids in its
reasonableness assessment. For instance, examining fees in other cases put the
requested fee into perspective by showing only one social security case approached
the magnitude of the de facto hourly fee requested here. And the district court
properly analyzed the consumer law attorney median rate
2
because it was not used
as a baseline for framing Haley’s requested fee as a percentage enhancement over
the median rate. Id. at 1150–51. Rather, after comparing the highest reported
median rate to Haley’s requested de facto hourly rate, the district court explained
that the significant disparity between the two “weakens counsel’s argument that the
requested fee would be reasonable.” Again, this is exactly the type of analysis
allowed under Gisbrecht, which permits courts to assess reasonableness of fees
using a “lawyer’s normal hourly billing charge for noncontingent-fee cases.” 535
U.S. at 808. Here, the median rate was appropriately used as a point of
comparison, not a starting point, and as one factor out of several tending to show
the fee was unreasonable.

2
As a substitute for her normal hourly rate, Haley submitted as evidence the
median hourly rate for consumer law attorneys in California in 2015 and 2016,
which ranged from $325 to $725 per hour.

5
After the fee was determined unreasonable, the district court properly
reduced the hourly fee to $1,400 for a total reduced fee award of $32,760 by
providing “a concise but clear explanation of its reasons for the fee award.”
Crawford, 586 F.3d at 1152 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)). For guidance on reducing the hourly fee, the district court relied on
approved hourly rates in other social security cases, which makes sense
considering that (besides the comparison of benefits to time spent on the case)
there was nothing abnormal about Haley’s representation. And the district court’s
analysis did not end there; it also acknowledged that reasonable contingency fees
generally should exceed a reasonable lodestar and adjusted upward to give Haley
the benefit of the difference in time and to recognize the absence of an upper limit
on hourly rates of reasonable fees. Considering the “district court[] [is]
accustomed to making reasonableness determinations in a wide variety of contexts,
and [its] assessments . . . qualify for highly respectful review[,]” Gisbrecht, 535
U.S. at 808, the district court did not err in setting attorney’s fees under § 406(b).
AFFIRMED.