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Henshaw v. Saul

United States District Court, E.D. California

October 8, 2019

ANDREW SAUL, Commissioner of Social Security[1], Defendant.




         On 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.)

         For the 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).


         Plaintiff 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. (Doc. 29.)

         On 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.


         Pursuant 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 following:

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

         The 25% 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”).

         Generally, “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).

         Here, the fee agreement between Plaintiff and counsel, signed by Plaintiff and her counsel, attorney ...

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