United States District Court, E.D. California
M. COTA, UNITED STATES MAGISTRATE JUDGE
who was proceeding with retained counsel, brought this action
for judicial review of a final decision of the Commissioner
of Social Security under 42 U.S.C. § 405(g). Pursuant to
the written consent of all parties, this case was before the
undersigned as the presiding judge for all purposes,
including entry of final judgment. See 28 U.S.C.
§ 636(c). Final judgment was entered on October 29,
2015. Pursuant to stipulation, plaintiffs counsel has
previously been awarded $6, 858.46 in attorney's fees
under the Equal Access to Justice Act (EAJA). Pending before
the court is plaintiffs counsel's petition for the award
of attorney's fees in the amount of $29, 858.46 in fees
under 42 U.S.C. § 406(b). Plaintiff was provided notice
of counsel's motion and has not filed any response
initiated this action for judicial review of a final decision
of the Commissioner of Social Security on September 3, 2014.
Plaintiffs representation was provided pursuant to a
September 2, 2014, contingent-fee agreement whereby plaintiff
agreed to pay counsel 25 percent of any past-due benefits
awarded by the Commissioner. Pursuant to the parties'
stipulation, the matter was remanded to the Commissioner for
further proceedings. On February 2, 2016, pursuant to the
stipulation of the parties, plaintiff was awarded $6, 858.46
in attorney's fees under the EAJA, payable to plaintiff
less any offsets to be determined by the
government. On remand to the agency, the Commissioner
granted plaintiffs application for disability benefits and
awarded $120, 764.00 in past-due benefits.
the Social Security Act, "[w]henever 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 past-due benefits to which the claimant is entitled
by reason of such judgment. . . ." 42 U.S.C. §
406(b)(1)(A). No. other fee may be payable or certified for
such representation except as allowed in this provision.
remand constitutes a "favorable judgment" under
§ 406(b). See Shalala v. Schaefer, 509 U.S.
292, 300-01 (1993). While the Ninth Circuit has not directly
addressed the issue, all other circuits to address the issue
have concluded that the district court is authorized to award
fees under § 406(b) when it remands for further
proceedings and, following remand, the claimant is awarded
past-due benefits. See Garcia v. Astrue, 500
F.Supp.2d 1239, 1243 (CD. Cal. 2007). Limiting § 406(b)
awards to cases in which the district court itself awards
past-due benefits would discourage counsel from requesting a
remand where it is appropriate. See Bergen v. Comm'r
of Soc. Sec, 454 F.3d 1273, 1277 (11th Cir. 2006).
percent statutory maximum fee is not an automatic
entitlement, and the court must ensure that the fee actually
requested is reasonable. See Gisbrecht v. Barnhart,
535 U.S. 789, 808-09 (2002). "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. "In determining the
reasonableness of fees sought, the district court must
respect 'the primacy of lawful attorney-client fee
arrangements,' 'looking first to the contingent-fee
agreement, then testing it for reasonableness.'"
Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir.
2009) (quoting Gisbrecht, 535 U.S. at 793 and 808).
Supreme Court has identified five 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. See Crawford, 586
F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 808).
Those factors are: (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. See id.
an award of fees under § 406(b) is offset by any prior
award of attorney's fees granted under the Equal Access
to Justice Act (EAJA). See Gisbrecht, 535 U.S. at
case, having considered the factors above, the court finds
that plaintiffs counsel's request for an amount equal to
24.7% of the award of past due benefits, is reasonable given
the fee agreement with plaintiff, the results achieved, the
lack of any evidence of dilatory conduct designed to increase
past-due benefits, and the applicable statutes.
IT IS HEREBY ORDERED that:
Plaintiff s counsel's petition (ECF No. 31) is granted
and counsel is awarded fees pursuant to 42 U.S.C. §
406(b) in the amount of $29, 858.46, paid to counsel by the
Commissioner out of past-due benefits awarded to plaintiff to