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Edwards v. Berryhill

United States District Court, C.D. California

September 6, 2017

STEVEN EDWARDS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, [1] Defendant.

          ORDER RE: COUNSEL'S “MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(B), ETC.”

          CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

         PROCEEDINGS

         On July 27, 2017, counsel for Plaintiff filed “Counsel's Notice of Motion and Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b), etc.” (“the Motion”) with exhibits (“Motion Ex.”). The Motion seeks $22, 560.23 in fees the Administration, with an order to reimburse Plaintiff for: (1) the $6, 000 the Administration previously awarded under 28 U.S.C. § 406(a) for counsel's time spent before the Administration; and (2) the $2, 400 the Government previously paid in fees under 28 U.S.C. § 2412(d) (the Equal Access to Justice Act (“EAJA”)). Counsel submits that the order requested would result in a net fee to counsel of $14, 160.23 for 20.9 hours of work counsel and his paralegals performed before this Court under a contingent fee agreement with Plaintiff.

         On August 11, 2017, Defendant filed a response that purportedly takes no position regarding whether the requested fee is “reasonable.” Defendant's response suggests, however, that a calculation of the de facto hourly rate counsel seeks ranges from $1, 514.11 for attorney and paralegal time, to $2, 108.43 for only attorney time. See Defendant's Response, p. 4 n.3. The Court has taken the Motion under submission without oral argument. See Minute Order, filed July 28, 2017.

         BACKGROUND

         Plaintiff filed a complaint on September 8, 2014, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on September 29, 2014. Plaintiff filed a motion for summary judgment on March 11, 2015. Defendant filed a motion for summary judgment on June 4, 2015. On July 14, 2015, the Court denied the parties' motions and remanded this matter to the Commissioner for further administrative action, finding that the Administrative Law Judge's reasoning did not suffice to support an adverse credibility finding. See Memorandum Opinion and Order of Remand and Judgment (Docket Nos. 21-22). On September 29, 2015, upon the parties' stipulation, the Court awarded EAJA fees in the amount of $2, 400, payable to Plaintiff's counsel (Docket Nos. 23-26).

         On remand, the Administration conducted additional proceedings that resulted in an award of past-due Supplemental Security Income (“SSI”) of $2, 975.92 and past-due Disability Insurance Benefits (“DIB”) of $87, 265.00, for a total of $90, 240.92 in past-due benefits. See Motion Ex. 9, p. 2, and Ex. 10, p. 3.[2]From these awards, the Administration withheld for the payment of attorney fees $22, 560.23 (i.e., $743.98 from past-due SSI, plus $21, 816.25 from past-due DIB). See Motion, p. 1; Motion Ex. 9, p. 2, and Ex. 10, p. 4. Counsel now seeks the entirety of this amount under Section 406(b). See id. As indicated above, counsel already has received $6, 000 under Section 406(a) for work performed before the Administration. Without citing any supporting authority, counsel urges the Court to order a reimbursement to Plaintiff of the Section 406(a) fees. See Motion, p. 1; Motion Ex. 10, p. 3.

         In support of the Motion, counsel has submitted copies of the fee agreements between counsel and Plaintiff dated August 17, 2011, and August 20, 2014. See Motion, Exs. 1B and 4. These agreements provide for a contingent fee of the lesser of 25 percent of past-due benefits or $6, 000 under Section 406(a), and an additional fee of 25 percent of any award of past-due benefits under Section 406(b). See id..[3] Counsel also submitted a billing itemization reflecting that counsel worked 10.7 hours and counsel's paralegals worked either 9.33 hours or 10.2 hours representing Plaintiff before the Court. See Motion Ex. 14.[4]This billing itemization shows that all of counsel's 10.7 hours were spent preparing Plaintiff's motion for summary judgment, and six of the 9.33 paralegal hours were spent preparing the Motion. Id.

         APPLICABLE LAW

         Section 406(b)(1) of Title 42 provides:

         Whenever a court renders a judgment favorable to a claimant . . . 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 . . . In case of any such judgment, no other fee may be payable . . . for such representation except as provided in this paragraph. 42 U.S.C. § 406(b)(1)(A).

         According to the United States Supreme Court, section 406(b)

         does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases. Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. Within this 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (citations omitted) (emphasis added) (“Gisbrecht”).

         The hours spent by counsel representing the claimant and counsel's “normal hourly billing charge for noncontingent-fee cases” may aid “the court's assessment of the reasonableness of the fee yielded by the fee ...


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