United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
sought judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”),
denying his application for a period of disability and
disability insurance benefits (“DIB”) benefits
under Title II and supplemental security income (SSI) under
Title XVI of the Social Security Act (“the Act”).
On October 31, 2017, the parties stipulated to remand, and an
order and judgment was entered. ECF Nos. 22, 23.
pending before the court is plaintiff’s August 21, 2019
amended motion for an award of attorney’s fees pursuant
to 42 U.S.C. § 406(b). ECF No. 28. On September 12,
2019, defendant filed a response taking “no position on
the reasonableness of the request.” ECF No. 30 at 4.
For the reasons set forth below, the motion will be granted.
REASONABLENESS OF FEE REQUEST
outset of the representation, plaintiff and his counsel
entered into a contingent-fee agreement. ECF No. 29-1.
Pursuant to that agreement plaintiff’s counsel now
seeks attorney’s fees in the amount of $10, 926.00,
which represents 25% of the retroactive disability benefits
received by plaintiff on remand, for 10.25 hours of attorney
time expended on this matter. ECF Nos. 28-1, 28 at 4.
are entitled to fees for cases in which they have
successfully represented social security claimants:
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). “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 goal of fee awards under § 406(b) is
“‘to protect claimants against
“inordinately large fees” and also to ensure that
attorneys representing successful claimants would not risk
“nonpayment of [appropriate] fees.”’”
Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d
1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 535
U.S. at 805).
statutory maximum fee is not an automatic entitlement, and
the court must ensure that the fee requested is reasonable.
Gisbrecht, 535 U.S. at 808-09 (“406(b) does
not displace contingent-fee agreements within the statutory
ceiling; instead, § 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. “[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
1149 (quoting Gisbrecht, 535 U.S. at 793, 808).
determining whether the requested fee is reasonable, the
court considers “‘the character of the
representation and the results achieved by the
representative.’” Crawford, 586 F.3d at
1151 (quoting Gisbrecht, 535 U.S. at 808). In
determining whether a reduction in the fee is warranted, the
court considers whether the attorney provided
“substandard representation or delayed the case,
” or obtained “benefits that are not in
proportion to the time spent on the case.” Id.
Finally, the court considers the attorney’s record of
hours worked and counsel’s regular hourly billing
charge for non-contingent cases. Crawford, 586 F.3d
at 1151-52 (citing Gisbrecht, 535 U.S. at 808);
see also, E.D. Cal. R. 293(c)(1) (in fixing
attorney’s fees the court considers “the time and
labor required”). Below, the court will consider these
factors in assessing whether the fee requested by counsel in
this case pursuant to 42 U.S.C. § 406(b) is reasonable.
plaintiff’s counsel is an experienced attorney who
secured a successful result for plaintiff. See
Declaration of Jesse S. Kaplan (“Kaplan Decl.”)
(ECF No. 28 at 6-7). There is no indication that a reduction
of fees is warranted due to any substandard performance by
counsel. There is also no evidence that plaintiff’s
counsel engaged in any dilatory conduct resulting in
excessive delay. The court finds that the $10, 962.00 fee,
which represents 25% of the past-due benefits paid to
plaintiff, is not excessive in relation to the benefits
awarded. In making this determination, the court recognizes
the contingent fee nature of this case and counsel’s
assumption of the risk of going uncompensated in agreeing to
represent plaintiff on such terms. See Crawford, 586
F.3d at 1152 (“[t]he attorneys assumed significant risk
in accepting these cases, including the risk that no benefits
would be awarded or that there would be a long court or
administrative delay in resolving the cases”). Finally,
counsel has submitted a detailed billing statement in support
of the requested fee. ECF No. 28 at 4. Defendant has not
opposed the reasonableness of the award.
for the reasons stated above, the court concludes that the
fees sought by counsel pursuant to § 406(b) are
OFFSET FOR EAJA FEES
award of § 406(b) fees must be offset by any prior award
of attorney’s fees granted under the Equal Access to
Justice Act (“EAJA”). 28 U.S.C. § 2412;
Gisbrecht 535 U.S. at 796. Here, plaintiffs attorney
was previously awarded $2, 017.10 in EAJA ...