United States District Court, E.D. California
ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEY
FEES PURSUANT TO 42 U.S.C. § 1383(D)(2)(B) (ECF NO.
Brian Shapiro (“Counsel”), attorney for Antonio
Aguilar (“Plaintiff”), filed the instant motion
for attorney fees on November 5, 2019. Counsel requests fees
in the net amount of $7, 000.00 pursuant to 42 U.S.C. §
1383(d)(2)(B). Plaintiff was served with the motion and
advised that any opposition to the motion was to be filed
within fourteen days. Plaintiff did not file a timely
opposition to the request. (ECF No. 21 at 2,
On November 19, 2019 the Commissioner of Social Security
filed a non-party response to the motion for attorney fees in
a role resembling that of trustee for Plaintiff. For the
following reasons, Petitioner's motion for attorney fees
shall be granted.
filed the instant complaint challenging the denial of social
security benefits on November 2, 2017. (ECF No. 1.) On August
22, 2018, an order issued granting the parties'
stipulation for voluntary remand. (ECF No. 18.) The Court
entered judgment in Plaintiff's favor and the action was
remand, the ALJ found that Plaintiff was disabled as of
December 10, 2013, and past benefits were awarded in the
amount of $43, 141.20. (ECF No. 21-2 at 6; ECF No. 21-3.)
Petitioner has previously received payment of $2, 750.00 in
fees under the Equal Access to Justice Act
(“EAJA”). (ECF No. 20.) In the instant motion,
Petitioner seeks an additional $7, 000.00 for a gross award
of $9, 750.00 for work performed in this action.
attorney may seek an award of attorney fees for representing
a Social Security claimant who is awarded benefits under
Title XVI pursuant to 42 U.S.C. § 1383. In relevant
part, section 1383 provides:
[I]f the claimant is determined to be entitled to past-due
benefits under this subchapter and the person representing
the claimant is an attorney, the Commissioner of Social
Security shall pay out of such past-due benefits to such
attorney an amount equal to the lesser of--
(i) so much of the maximum fee as does not exceed 25 percent
of such past-due benefits (as determined before any
applicable reduction under subsection (g) and reduced by the
amount of any reduction in benefits under this subchapter or
subchapter II pursuant to section 1320a-6(a) of this title .
. . .
42 U.S.C. § 1383(d)(2)(B). Additionally, with exceptions
not relevant here, “[t]he provisions of section 406 of
[Title 42] shall apply to this part to the same extent as
they apply in the case of subchapter II. . . .” 42
U.S.C. § 1383(d)(1). Therefore, the Court addresses
Petitioner's fee request as if it were a request brought
under section 406(b).
Supreme Court has explained that a district court reviews a
petition for section 406(b) fees “as an independent
check” to assure that the contingency fee agreements
between the claimant and the attorney will “yield
reasonable results in particular cases.” Gisbrecht
v. Barnhart, 535 U.S. 789, 807 (2002). The district
court must respect “the primacy of lawful
attorney-client fee agreements, ” and is to look first
at the contingent-fee agreement, and then test it for
reasonableness.” Crawford v. Astrue, 586 F.3d
1142, 1148 (9th Cir. 2009). The twenty-five percent 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”). Agreements seeking fees in excess of
twenty-five percent of the past-due benefits awarded are not
enforceable. Crawford, 586 F.3d at 1148. The
attorney has the burden of demonstrating that the fees
requested are reasonable. Gisbrecht, 535 U.S. at
808; Crawford, 586 F.3d at 1148.
determining the reasonableness of an award, the district
court should consider the character of the representation and
the results achieved. Gisbrecht, 535 U.S. at 800.
Ultimately, an award of section 406(b) fees is offset by an
award of attorney fees granted under the EAJA.
Gisbrecht, 535 U.S. at 796.
Ninth Circuit has identified several factors that a district
court can examine under Gisbrecht in determining
whether the fee was reasonable. In determining whether
counsel met his burden to demonstrate that the requested fees
are reasonable, the court may consider (1) the standard of
performance of the attorney in representing the claimant; (2)
whether the attorney exhibited dilatory conduct or caused
excessive delay which resulted in an undue accumulation of
past-due benefits; and (3) whether the requested fees are