Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frank Fontana v. Michael J. Astrue

January 26, 2012

FRANK FONTANA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING APPLICATION FOR ATTORNEY FEES

(Document 23)

Petitioner Sengthiene Bosavanh ("Counsel"), attorney for Plaintiff Frank Fontana, filed the instant application for fees on December 7, 2011. Counsel requests fees in the amount of $30,445.05 pursuant to 42 U.S.C. § 406(b)(1).

Defendant did not file an opposition.

BACKGROUND

Plaintiff filed this action on May 17, 2010. On February 2, 2011, the Court granted the parties' stipulation to remand the action for further proceedings. On July 21, 2011, the Court granted Plaintiff's motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA") in the amount of $3,168.59.*fn1

On September 19, 2011, Administrative Law Judge Daniel G. Heely issued a decision finding Plaintiff disabled since November 2, 2005. Exhibit 2, attached to Application.

Pursuant to the ALJ's decision, the Commissioner issued a Notice of Award on October 12, 2011. Exhibit 3, attached to Application. The Notice indicates that Plaintiff is entitled to past-due monthly benefits beginning in May 2006. Unlike most Notice of Awards, however, neither the total amount of past-due benefits nor the amount withheld for attorney's fees is set forth. Using the chart of the yearly benefit amounts, the past-due benefit is calculated to be $121,780.20.*fn2

By this motion, Counsel seeks an award of $30,445.05 for 24.7 hours of attorney time.*fn3

This amount represents 25 percent of the past-due award. After crediting $3,168.59 received previously pursuant to the EAJA, Counsel requests a net fee of $27,276.46 from the past-due award.

DISCUSSION

42 U.S.C. § 406(b)(1)(A) provides in relevant 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 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002), the Supreme Court explained that a district court reviews a petition for section 406(b) fees "as an independent check" to assure that contingency fee agreements between claimants and their attorneys will "yield reasonable results in particular cases." The Court must respect "the primacy of lawful attorney-client fee agreements," id. at 793, "looking first to the contingent-fee agreement, then testing it for reasonableness." Id. at 808; see also Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009). Agreements are not enforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. Gisbrecht, 535 U.S. at 807. "Within the 25 percent boundary. . . the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered." Id.

In determining the reasonableness of an award, the district court should consider the character of the representation and the results achieved. Id. at 808. Ultimately, an award of section 406(b) fees is offset by an award of attorney's fees granted ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.