United States District Court, C.D. California
ORDER RE: COUNSEL'S “MOTION FOR ATTORNEY
FEES PURSUANT TO 42 U.S.C. § 406(B),
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
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
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.
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
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.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.
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.. 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.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.
406(b)(1) of Title 42 provides:
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).
to the United States Supreme Court, section 406(b)
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”).
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