United States District Court, C.D. California
CORRECTED ORDER GRANTING COUNSEL'S MOTION FOR
ATTORNEY FEES UNDER 42 U.S.C. § 406(B)
ROZELLA A. OLIVER, UNITED STATES MAGISTRATE JUDGE
the Court are Plaintiff Mark Anthony Landaverde's
(“Counsel”)'s Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (“Motion”)
and Nancy A. Berryhill's (“Commissioner”)
Notice of Non-Opposition (“Comm'r Response”).
(See Dkt. Nos. 32, 33.)
the reasons stated below, the Court GRANTS Counsel's
October 7, 2015, Plaintiff filed a complaint in this Court
challenging the Commissioner's decision to deny his
application for social security disability and disability
insurance benefits and supplemental security income. On
August 25, 2016, the Court entered judgment reversing the
decision of the Commissioner and remanding the matter.
Thereafter, based on the parties' joint stipulation, the
Court ordered payment of $6, 150.00 in Equal Access to
Justice Act (“EAJA”) fees to Counsel. On remand,
the Administrative Law Judge granted Plaintiff's
application for benefits. In a Notice of Award dated January
17, 2018, the agency informed Plaintiff that his past-due
benefits totaled $55, 302.00 for March 2011 through December
2016. (Mot., Ex. A at 1.) The agency also informed Plaintiff
that 25-percent of Plaintiff's past-due benefits,
amounting to $18, 111.00, had been withheld to pay his
counsel's fees. (Id.at 3.) In two separate
Notices of Award dated March 22, 2018, each regarding
auxiliary benefits for Plaintiff's wife and child, the
agency informed Plaintiff and other individuals that those
benefits totaled $24, 444.00 in the aggregate. (Id.
at 8, 12.) In the same Notices of Award, the agency also
stated that it had withheld a total of $6, 111.00 to pay
Plaintiff's Counsel's fees. (Id.)
brings this Motion pursuant to 42 U.S.C. § 406(b)
requesting $24, 222.00 for attorney fees. In the Motion,
Counsel states that the amount awarded should be reduced by
$6, 150.00, the amount already awarded to Counsel under EAJA.
(Mot. at 4.) The Commissioner does not oppose Counsel's
42 U.S.C. §406(b) Fees
attorney who represents a Social Security benefits claimant
in court may be awarded “a reasonable fee … not
in excess of 25 percent of the total of the past-due
benefits” awarded to the claimant, payable “out
of, and not in addition to, the amount of such past-due
benefits.” 42 U.S.C. § 406(b)(1)(A). Attorneys may
not obtain additional fees based on a claimant's
continuing entitlement to benefits. Id.
Crawford v. Astrue, the Ninth Circuit addressed the
calculation of attorney fees, stating that “[a]
district court charged with determining a reasonable fee
award under § 406(b) must respect … ‘lawful
attorney-client fee agreements … looking first to the
contingent-fee agreement, then testing it for
reasonableness.'” 586 F.3d 1142, 1148 (9th Cir.
2009) (quoting Gisbrecht v. Barnhart, 535 U.S. 789,
122 S.Ct. 1817, 152 L.Ed.2d 996 (2002)). However, “the
court may properly reduce the fee for substandard
performance, delay, or benefits that are not in proportion to
the time spent on the case.” Crawford, 586
F.3d at 1151.
exhibit attached to the Motion, Counsel provided a summary of
hours indicating that Counsel spent 35.2 hours on this matter
before the Court. (Mot., Ex. C.) Taking the award sought by
Counsel in the Motion ($24, 222.00) and the number of
attorney hours spent working on the matter (35.2) yields an
effective billing rate of $688.13.
The Commissioner does not oppose the fee request. (Dkt. No.
Several reasons indicate that Counsel's request is
the Court notes that Plaintiff agreed, in writing, to Counsel
receiving 25 percent of past due benefits awarded,
contingent, of course, upon a favorable
outcome. (See Mot., Ex. B.) Plaintiff was
ultimately awarded back payments as well as auxiliary
benefits. (Id., Exs. 3, 4.) By contract, Counsel is
entitled to 25-percent of the amount ...