United States District Court, N.D. California
ORDER RE: PLAINTIFF'S MOTION FOR FEES RE: DKT.,
JACQUELINE SCOTT CORLEY United States Magistrate Judge
Social Security case, Plaintiff Clayton Wood moves for
attorneys' fees pursuant to 42 U.S.C. § 406(b).
(Dkt. No. 27.) Defendant Nancy A. Berryhill, the Commissioner
of the Social Security Administration (“SSA”),
submitted a response analyzing the fee request which does not
take a position as to the reasonableness of the fee request.
After carefully considering the arguments and briefing
submitted, the Court concludes that oral argument is
unnecessary, see Civ. L.R. 7-1(b), and denies the
motion without prejudice.
case stems from Plaintiff's appeal of the SSA's
denial of his application for disability benefits for a
combination of physical and mental impairments, including:
post traumatic stress disorder, head injury, head pain,
depression, ringing in the inner ear, blurred eye vision, and
short term memory loss. On August 14, 2015, the Court granted
Plaintiff's motion for summary judgment, denied
Defendant's cross motion for summary judgment, and
remanded to the SSA for further proceedings, concluding that
the Administrative Law Judge (“ALJ”) committed
legal error in weighing the medical evidence and evaluating
Plaintiff's credibility. (Dkt. No. 19.) On remand, the
ALJ determined that Plaintiff was, and continues to be,
disabled as of November 2011. (Dkt. No. 29-1 at
As a result, the SSA awarded Plaintiff past-due benefits, in
the amount of $53, 881.50 for himself and $19, 476 for his
minor daughter, as well as ongoing benefits. (Id.)
On December 28, 2015, pursuant to the parties'
stipulation, the Court awarded $4, 303.92 in fees to
Plaintiff's counsel pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d).
(Dkt. No. 27.) Plaintiff subsequently filed a motion for fees
pursuant to 42 U.S.C. § 406(b). (Dkt. No. 29.) Counsel
requests fees in the amount of $15, 339.00; this total
represents 25% of Plaintiff's and his daughter's
past-due benefits. (Dkt. No. 27 at 8.)
406(b) provides that “[w]henever a court renders a
judgment favorable to a [social security] 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” to claimant's attorney;
such a fee can be no more than 25% of the total of past-due
benefits awarded to the claimant. 42 U.S.C. §
406(b)(1)(A). A court may award such a fee even if the
court's judgment did not immediately result in an award
of past-due benefits; where the court has rendered a judgment
favorable to a claimant by reversing an earlier determination
by an ALJ and remanding for further consideration, the court
may calculate the 25% fee based upon any past-due benefits
awarded on remand. See, e.g., Crawford v.
Astrue, 586 F.3d 1142 (9th Cir.2009) (en banc);
Wells v. Colvin, No. 12-CV-05287-JST, 2015 WL
4072847, at *1 (N.D. Cal. July 2, 2015).
Section 406(b), a court must serve “as an independent
check” of contingency fee agreements “to assure
that they yield reasonable results.” Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002). Section 406(b)
“does not displace contingent-fee agreements within the
statutory ceiling; instead, [Section] 406(b) instructs courts
to review for reasonableness fees yielded by those
agreements.” Id. at 808-09. The court's
review of a fee agreement is based on the character of the
representation and the results achieved, see
Gisbrecht, 535 U.S. at 808, and can include analyzing:
whether counsel provided substandard representation, any
dilatory conduct by counsel to accumulate additional fees,
whether the requested fees are excessively large in relation
to the benefits achieved, and the risk counsel assumed by
accepting the case. See Crawford, 586 F.3d at
1151-52; Wells, 2015 WL 4072847 at *1.
counsel has provided insufficient information for the Court
to analyze the reasonableness of his fee request. First,
counsel bases his fee request in part on the contingency fee
agreement that he had with Plaintiff which provides in part
that he shall receive 25 percent of any award of past-due
benefits. (Dkt. No. 29-3 at 1.) However, this agreement was
signed by Mr. Wood June 15, 2015 and “approved by the
law firm” August 2, 2015-which is four months after the
motion for summary judgment was fully briefed and while that
motion was under submission-that is, after all the
substantive work had been performed in this case. (Dkt. No.
29-3 at 3.) To the extent that there is another retainer
agreement, which would govern the time period relevant to the
Court's order granting Plaintiffs motion for summary
judgment, counsel may re-file his motion for attorney's
fees attaching the applicable retainer
agreement. Second, counsel has failed to submit any
evidence or documentation supporting his request for $15, 339
in fees. Notably, he has not submitted a declaration
attesting to his hourly rate, detailing the hours expended on
this matter, or otherwise explaining the reasonableness of
his request for $15, 399. Finally, as the Commissioner notes,
the docket does not reflect that counsel served a copy of his
motion for fees on Plaintiff.
Plaintiffs counsel's motion for attorney's fees is
DENIED without prejudice to renewal provided he addresses the
issues raised herein. Should counsel due so, he must serve a
copy of the motion on Plaintiff and file proof of service of
Order disposes of Docket No. 29.
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