United States District Court, S.D. California
ORDER GRANTING MOTION FOR ATTORNEY'S FEES
PURSUANT TO 42 U.S.C. § 406(B) [ECF NO. 17]
HONORABLE BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUGDE.
attorney, Lawrence D. Rohlfing (“Counsel”), moves
for an award of attorney's fees pursuant to 42 U.S.C.
§ 406(b). Counsel asks the Court to award $30, 000.00 in
attorney's fees from Plaintiff's recovery of $173,
585.00 in past-due social security benefits, and to order
Counsel to refund Plaintiff the $3, 414.00 in fees Plaintiff
has already paid under the Equal Access to Justice Act
(“EAJA”). The Social Security Administration
Commissioner filed a brief as a “trustee” but
takes no position on the instant motion. Plaintiff has not
responded to Counsel's request. For the reasons set forth
below, the Court GRANTS Counsel's motion
for attorney's fees.
February 18, 2016, the Court granted the parties' joint
motion to voluntarily remand this action pursuant to sentence
four of 42 U.S.C. § 405(g) and remanded this action for
further administrative proceedings. ECF No. 12. On May 2,
2016, the Court granted the parties' joint motion for
attorney's fees and costs, awarding Plaintiff $3, 414.00
in attorney's fees and expenses under the EAJA, 28 U.S.C.
§ 2412, and $400.00 in costs under 28 U.S.C. §
1920. ECF No. 12.
remand, the Administrative Law Judge (ALJ) found Plaintiff
was disabled since September 1, 2010 and awarded Plaintiff
past-due disability benefits. ECF No. 17-3. The Notice of
Change in Benefits issued on October 6, 2018 informed
Plaintiff that he was entitled to monthly benefits from
February 2011 onward, and that $43, 396.25 of those past-due
benefits would be withheld in the event that Counsel
requested attorney's fees for work performed before this
Court. ECF No. 17-4.
now requests $30, 000 in attorney's fees pursuant to a
contingent-fee agreement in which Plaintiff agreed to give
Counsel 25% of any past-due benefits award. ECF No. 17-1;
see also ECF No. 17-2 (the contingent fee
agreement). Counsel further seeks an Order from this Court
directing him to reimburse Plaintiff the $3, 414.00 in fees
Counsel has previously received under the EAJA. Id.
U.S.C. § 406(b)(1)(A) provides:
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 . .
evaluating a request for a contingent fee under §
406(b), courts must first look to the contingent-fee
agreement, then test it for reasonableness. Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002). The following
factors, alone or in combination, may warrant a reduction:
(1) the result achieved; (2) “substandard
representation”; (3) delay by counsel; and (4) whether
“the benefits are large in comparison to the amount of
time counsel spent on the case, ” thereby resulting in
a windfall. Id. at 805; see also Crawford v.
Astrue, 586 F.3d 1142, 1151-53 (9th Cir. 2009) (en
banc). Courts may request “a record of the hours spent
representing the claimant and a statement of the lawyer's
normal hourly billing charge for noncontingent fee cases,
” to aid in assessing a fee's reasonableness.
Gisbrecht, 535 U.S. at 808; Crawford, 586
F.3d at 1151. Counsel bears the burden of establishing that
the requested fee is reasonable. Crawford, 586 F.3d
signed a 25% contingent fee agreement, the maximum allowed by
Section 406(b). ECF No. 17-2. Nothing in the record suggests
that the agreement is invalid. Turning to the reasonableness
of the requested $30, 000.00 award, the Court finds that the
result was successful and that there is no evidence of
substandard representation or delay. The only issue before
the Court is the fourth Gisbrecht factor,
i.e., whether “the benefits are large in
comparison to the amount of time [C]ounsel spent on the
case” thereby resulting in a windfall.
Gisbrecht, 535 U.S. at 805.
submits that his office expended 20.15 hours of attorney and
paralegal time, 15.85 hours and 4.3 hours respectively, on
the case. ECF No. 17-1, at 8 ¶ 5; ECF No. 17-5. Counsel
requests $30, 000.00, or approximately 17.28% of the
Plaintiff's recovered past-due social security benefits,
which is less than the maximum $43, 396.25 that the
Commissioner withheld pursuant to 42 U.S.C. 406(b).
See ECF No. 17-4, at 2. Counsel did not submit his
typical non-contingent fee hourly billing rate, but presented
evidence that the 95th percentile hourly rate for all
attorneys between 2015 and 2016 was $725 and that he has
practiced social security law since 1985. ECF No. 17-1, at 9
¶¶ 7-8, 8; ECF Nos. 17-6, 17-7. The effective
blended attorney/paralegal hourly rate for work performed
here is approximately $1, 488.83. Counsel asserts that this
hypothetical rate is proportionate to the time spent and,
given the results achieved, the relevant market hourly rates,
and the risks inherent in contingent-fee arrangements, is not
a windfall. ECF No. 17, at 2-6.
the primacy of lawful attorney-client fee agreements, the
amount and complexity of the work performed, the risks
assumed, the results achieved, Counsel's experience and
efficiency, the effective hourly rates courts have previously
approved in similar cases, and the fact that the requested
fees are significantly lower than the fees bargained-for in
the contingent fee agreement and not excessively large in
relation to the benefits achieved, the Court concludes that
Counsel has carried his burden to demonstrate that a fee
award of $30, 000.00 would be reasonable on the facts of this
case. See Crawford, 586 F.3d at 1151-52.
Accordingly, the Court will grant Counsel's present
motion and order that the attorney's fee award of $30,
000.00 be paid out of Plaintiff's past-due benefits that
have been withheld by Defendant. Since attorney's fees
have also been awarded to Counsel pursuant to the EAJA,
however, the earlier EAJA attorney's fee award in the
amount of $3, 414.00 must be refunded to Plaintiff. See
Gisbrecht, 535 U.S. at 796 (“Congress harmonized
fees payable by the Government under EAJA with fees payable