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. 30)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
September 6, 2019, counsel for Plaintiff Tami Lanea Henshaw
(“Plaintiff”) filed a motion for an award of
attorney's fees pursuant to 42 U.S.C. § 406(b).
(Doc. 30.) On September 9, 2019, the Court issued a minute
order requiring Plaintiff and the Commissioner to file their
responses in opposition or statements of non-opposition to
Plaintiff's counsel's motion, if any, by no later
than September 27, 2019. (Doc. 31.) Plaintiff and the
Commissioner were served with copies of the motion for
attorney's fees and the minute order. (Doc. 32.) On
September 12, 2019, the Commissioner filed a statement of
non-opposition, stating that the Commissioner “has no
objection to the fee request.” (Doc. 33.) Plaintiff did
not file any objection to the motion by the September 27,
2019 deadline. (See Docket.)
reasons set forth below, Plaintiff's counsel's motion
for an award of attorney's fees is granted in the amount
of $20, 550, subject to an offset of $5, 784.52 in fees
already awarded pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), on July 6,
2016 (see Doc. 29).
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.)
On February 11, 2016, the Court reversed and remanded the
case and judgment was entered in favor of Plaintiff and
against the Commissioner on the same day. (Docs. 23, 24.) On
July 6, 2016, the Court granted in part Plaintiff's
opposed motion for EAJA fees, in the amount of $5, 784.52.
remand, the Commissioner found Plaintiff disabled as of July
16, 2008. (See Doc. 30-2 at 1.) On August 31, 2019,
the Commissioner issued a letter to Plaintiff approving her
claim for benefits and awarding her $102, 075.52 in back
payments through July 2019. (See Doc. 30-2 at 1, 3.)
On September 6, 2019, counsel filed a motion for
attorney's fees in the amount of $20, 550, equal to 20.1%
of Plaintiff's back benefits, with an offset of $5,
784.52 for EAJA fees already awarded. (Doc. 30.) It is
counsel's § 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. § 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 § 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 § 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 (§ 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; 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 counsel, signed by
Plaintiff and her counsel, attorney ...