United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S COUNSEL'S MOTION
FOR ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 406(B)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
February 28, 2018, counsel for Plaintiff Adina Shannon
Rodriguez (“Plaintiff”), Lawrence D. Rohlfing,
Esq., filed a motion for an award of attorney's fees
pursuant to 42 U.S.C. § 406(b) (the
“Motion”). (Doc. 21.) On February 28, 2018, the
Court issued a minute order requiring Plaintiff and Defendant
to file their objections to the Motion, if any, by no later
than March 30, 2018. (Doc. 22.) Plaintiff was served with
copies of the Motion and the minute order. (Doc. 23.) On
March 30, 2018, the Commissioner filed a statement taking no
position as to the reasonableness of the fee request (Doc.
24); Plaintiff did not file any objection to the motion.
reasons set forth below, the motion for an award of
attorney's fees is GRANTED in the amount of $11, 100.00,
subject to an offset of $4, 717.80 in fees already awarded
pursuant to the Equal Access to Justice Act
(“EAJA”) on March 15, 2016 (see Doc.
brought the underlying action seeking judicial review of a
final administrative decision denying her claim for
disability insurance benefits and supplemental security
income under the Social Security Act. (Doc. 1.) On December
28, 2015, upon stipulation by the parties, the Court ordered
the case remanded to the agency for further proceedings.
(Doc. 16.) On December 30, 2015, judgment was entered in
accordance with the Court's order. (Doc. 17.) On remand,
the Commissioner awarded benefits to Plaintiff. (Doc. 21 at
3.) On February 28, 2018, the parties stipulated to an award
of $4, 717.80 in attorney fees under EAJA (Doc. 19), and on
March 15, 2018, the Court entered the stipulated order (Doc.
February 20, 2018, the Commissioner issued a notice that
retroactive disability benefits had been awarded to Plaintiff
and that $11, 103.50, representing 25% of Plaintiff's
past-due benefits, had been withheld from Plaintiff's
award of disability benefits for payment of any applicable
attorney's fees. (Doc. 21-2.) On February 28, 2018,
counsel filed a motion for attorney's fees in the amount
of $11, 100.00, with an offset of $4, 717.80 for EAJA fees
already awarded. (See Doc. 21 at 6.) It is
counsel's section 406(b) motion for attorney's fees
that is currently pending before the Court.
to the Social Security Act, attorneys may seek a reasonable
fee for cases in which they have successfully represented
social security claimants. Section 406(b) provides the
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, and the Commissioner of Social Security may .
. . certify the amount of such fee for payment to such
attorney out of, and not in addition to, the amount of such
past-due benefits . . . .
42 U.S.C. § 406(b)(1)(A) (emphasis added). “In
contrast to fees awarded under fee-shifting provisions such
as 42 U.S.C. § 1988, the fee is paid by the claimant out
of the past-due benefits awarded; the losing party is not
responsible for payment.” Crawford v. Astrue,
586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing
Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)).
The Commissioner has standing to challenge the award, despite
that the section 406(b) attorney's fee award is not paid
by the government. Craig v. Sec'y Dep't of Health
& Human Servs., 864 F.2d 324, 328 (4th Cir. 1989),
abrogated on other grounds in Gisbrecht, 535 U.S. at
807. The goal of fee awards under section 406(b) is to
provide adequate incentive to represent claimants while
ensuring that the usually meager disability benefits received
are not greatly depleted. Cotter v. Bowen, 879 F.2d
359, 365 (8th Cir. 1989), abrogated on other grounds in
Gisbrecht, 535 U.S. at 807.
maximum fee is not an automatic entitlement, and courts are
required to ensure that the requested fee is reasonable.
Gisbrecht, 535 U.S. at 808-09 (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).
“Within the 25 percent boundary . . . the attorney for
the successful claimant must show that the fee sought is
reasonable for the services rendered.” Id. at
807; see also Crawford, 586 F.3d at 1148 (holding
that section 406(b) “does not specify how courts should
determine whether a requested fee is reasonable” but
“provides only that the fee must not exceed 25% of the
past-due benefits awarded”).
“a district court charged with determining a reasonable
fee award under § 406(b)(1)(A) must respect ‘the
primacy of lawful attorney-client fee arrangements, ' . .
. ‘looking first to the contingent-fee agreement, then
testing it for reasonableness.'” Crawford,
586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at
793, 808). The United States Supreme Court has identified
several factors that may be considered in determining whether
a fee award under a contingent-fee agreement is unreasonable
and therefore subject to reduction by the court: (1) the
character of the representation; (2) the results achieved by
the representative; (3) whether the attorney engaged in
dilatory conduct in order to increase the accrued amount of
past-due benefits; (4) whether the benefits are large in
comparison to the amount of time counsel spent on the case;
and (5) the attorney's record of hours worked and
counsel's regular hourly billing charge for
non-contingent cases. Id. (citing
Gisbrecht, 535 U.S. at 807-08).
the fee agreement between Plaintiff and the Law Offices of
Lawrence D. Rohlfing, LLP, signed by ...