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Deborah Jensen v. Michael J. Astrue

August 9, 2012

DEBORAH JENSEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER,
DEFENDANT.



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

ORDER REGARDING PETITION FOR FEES (Document 20)

Petitioner Denise Bourgeois Haley ("Counsel"), attorney for Plaintiff Deborah Jensen, filed the instant application for fees on May 18, 2012. Counsel requests fees in the amount of $7,000.00 pursuant to 42 U.S.C. § 406(b)(1).

On June 4, 2012, Plaintiff objected to the request. Defendant did not respond to the application.

BACKGROUND

Plaintiff filed this action on August 13, 2008. On April 9, 2009, the Court granted the parties' stipulation to remand the action for further proceedings. On September 10, 2009, the Court granted the parties' stipulation to award Counsel attorney's fees pursuant to the Equal Access to Justice Act ("EAJA") in the amount of $1,450.00.

On March 23, 2012, Administrative Law Judge Gary J. Lee issued a decision finding Plaintiff disabled since June 30, 1985. Exh. 2, attached to Application.

Pursuant to the ALJ's decision, the Commissioner issued a Notice of Award on April 11, 2012. Exh. 3, attached to Application. The Notice indicates that Plaintiff is entitled to past-due monthly benefits beginning in June 2004, for a total past due award of $55,943.90. The Notice also indicates that $5,300.00 was withheld to pay attorney's fees, though it cites the incorrect paragraph of the Social Security Representation Agreement ("Agreement") in withholding less than 25 percent of the past due award. The Agreement provides for an award of $5,300.00 only where the case was successfully completed prior to a first hearing by an ALJ. Exh. 1, attached to Application. In cases that are decided by the Court, the Agreement provides for the customary 25 percent of the backpay awarded upon reversal. Id. Accordingly, 25 percent of $55,943.90, or $13,985.98, should have been withheld. Indeed, this is the figure that Counsel cites in her briefing.

By this motion, Counsel seeks an award of $7,000.00 for 9.7 hours of attorney time. This amount represents 12.5 percent of the past-due award. After crediting $1,450.00 received previously pursuant to the EAJA, Counsel requests a net fee of $5,550.00 from the past-due award.

On June 4, 2012, Plaintiff filed a short letter with the Court in which she objects to Counsel receiving additional compensation. Plaintiff states that Counsel should not be paid more than the $1,450.00 previously awarded because "she didn't attend any trials" and "should only be paid for the work she did."

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 ...


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