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 of the Social Security Act (“the
Act”). On May 22, 2018, the court granted
plaintiff's motion for summary judgment, denied the
Commissioner's cross-motion for summary judgment, and
remanded the action to the Commissioner with instructions to
award benefits. ECF No. 22.
pending before the court is plaintiff's December 5, 2019
motion for an award of attorney's fees pursuant to 42
U.S.C. § 406(b). ECF No. 25. Defendant has not submitted
a response. For the reasons set forth below, the motion will
REASONABLENESS OF FEE REQUEST
outset of the representation, plaintiff and his counsel
entered into a contingent-fee agreement. ECF No. 26-3.
Pursuant to that agreement plaintiff's counsel now seeks
attorney's fees in the amount of $19, 788.37, which
represents 25% of the $75, 868.50 in retroactive disability
benefits received by plaintiff on remand through April 2018.
ECF Nos. 26 at 2; 26-3 at 20-3.
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 Bess M. Brewer (“Brewer Decl.”)
(ECF No. 26-2). 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 $19, 788.37 fee,
which represents 25% of the $75, 868.50 in past-due benefits
paid to plaintiff through April 2018, 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”).
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, plaintiff's
attorney was previously awarded $6, 600.00 in EAJA fees.