United States District Court, E.D. California
ORDER GRANTING PLAINTIFF’S COUNSEL’S
UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT TO 42
U.S.C. § 406(B) (DOC. 23)
K. OBERTO, UNITED STATES MAGISTRATE JUDGE.
August 6, 2019, counsel for Plaintiff Carmen Teresa Osborne
(“Plaintiff) filed a motion for an award of
attorney’s fees pursuant to 42 U.S.C. § 406(b)
(“section 406(b)”). (Doc. 23.) On August 7, 2019,
the Court issued a minute order requiring Plaintiff and the
Commissioner to file their responses in opposition or
statements of non-opposition to Plaintiffs counsel’s
motion, if any, by no later than September 3, 2019. (Doc.
24.) Plaintiff and the Commissioner were served with copies
of the motion for attorney’s fees and the minute order.
(Docs. 24, 26.) On August 7, 2019, the Commissioner filed a
response, acknowledging that he was not a party to the
contingent-fee agreement between Plaintiff and her counsel
and therefore “not in a position to either assent or
object to the fees that Counsel seeks from Plaintiffs
past-due benefits, ” but nevertheless taking “no
position on the reasonableness of the request.”
(See Doc. 19 at 2, 5.) Plaintiff did not file any
objection to the motion by the September 3, 2019, deadline
reasons set forth below, Plaintiffs counsel’s motion
for an award of attorney’s fees is granted in the
amount of $15, 176.25, subject to an offset of $4, 600.00 in
fees already awarded pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d), on March
9, 2018 (see Doc. 22).
brought the underlying action seeking judicial review of a
final administrative decision denying her claim for
disability benefits under the Social Security Act. (Doc. 1.)
The parties stipulated to voluntarily remand the case
pursuant to Sentence Four of 42 U.S.C. 405(g) on December 18,
2017, and judgment was entered in favor of Plaintiff and
against the Commissioner on December 19, 2017. (Docs. 18,
19.) On March 8, 2018, the parties stipulated to an award of
$4, 600.00 in attorney fees under EAJA, which was entered on
March 9, 2018. (Docs. 21, 22.)
remand, the Commissioner found Plaintiff disabled as of
February 18, 2012. (See Doc. 23-2 at 16.) On May 22,
2019, the Commissioner issued a letter to Plaintiff approving
her claim for benefits and awarding her $84, 705.20 in back
payments through December 2018. (Doc. 23-3 at 1; Doc. 23-7.)
On August 6, 2019, counsel filed a motion for
attorney’s fees in the amount of $15, 176.25, equal to
17.9% of Plaintiff s back benefits, with an offset of $4,
600.00 for EAJA fees already awarded. (Doc. 23.) 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 807.1
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
the fee agreement between Plaintiff and the Law Offices of
Lawrence Rolfing, signed ...