(SS) Pendergast v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN RUSSELL PENDERGAST, ) Case No.: 1:16-cv-0552 JLT ) 12 Plaintiff, ) ORDER GRANTING COUNSEL’S MOTION ) FOR ATTORNEY FEES PURSUANT TO 13 v. ) 42 U.S.C. § 406(b) ) 14 ANDREW M. SAUL, ) (Doc. 29) Commissioner of Social Security, ) 15 ) Defendant. ) 16 17 Cyrus Safa, counsel for Plaintiff Adolfo Lugo, seeks an award of attorney fees pursuant to 42 18 U.S.C. § 406(b). (Doc. 29) Neither Plaintiff nor the Commissioner of Social Security have opposed 19 the motion. For the following reasons, the motion for attorney fees is GRANTED. 20 I. Relevant Background 21 In 2016, Plaintiff entered into a contingent fee agreement with the Law Offices of Lawrence D. 22 Rohlfing. (Doc. 29-1 at 1) Plaintiff indicated that he agreed his was entitled to “25% of the backpay 23 awarded upon reversal of the unfavorable ALJ decision for work before the court.” (Id., emphasis 24 omitted) The agreement also indicated counsel may seek compensation under the Equal Access to 25 Justice Act, and the amount awarded would be credited to Plaintiff. (Id.) 26 On April 19, 2016, Plaintiff filed a complaint for review of the administrative decision denying 27 an application for Social Security benefits. (Doc. 1) The Court found the administrative law judge 28 “failed to apply the proper legal standards” in evaluating the medical record. (Doc. 25 at 1, 14-17) 1 Thus, the Court remanded the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 2 405(g) on July 17, 2017. (Id. at 18) Following the entry of judgment in favor of Plaintiff (Doc. 22), the 3 Court awarded $3,000.00 in attorney fees pursuant to the Equal Access to Justice Act. (Doc. 28 at 1) 4 Upon remand, the administration issued a partially favorable decision, finding Plaintiff was 5 entitled to $89,920.00 in past-due benefits. (Doc. 29-3 at 2) Mr. Safa reports that the Law Offices of 6 Lawrence D. Rohlfing “received an electronic message which included a Form SSA-1099 which 7 indicate[d] attorney fees in the amount of $22,4550.00.” (Doc. 29 at 15, Safa Decl. ¶ 4) 8 Counsel filed the motion now before the Court on December 2, 2020, seeking approximately 9 10% of the past-due benefits, in the amount of $9,000.00. (Doc. 29 at 5) Mr. Safa also indicated he 10 would credit Plaintiff the amount of fees previously awarded under the EAJA. (Id. at 1) Plaintiff was 11 served with the motion and informed of the right to file a response to indicate whether he agreed or 12 disagreed with the requested fees within fourteen days. (Id. at 2, 17) Plaintiff has not opposed or 13 responded to the motion for fees. The Commissioner filed a response to the motion on December 3, 14 2020, indicating “[t]he Commissioner was not a party to the contingent-fee agreement between Counsel 15 and Plaintiff and therefore is not in a position to either assent to or object to the § 406(b) fees that 16 Counsel seeks from Plaintiff’s past-due benefits.” (Doc. 30 at 2) 17 II. Attorney Fees under § 406(b) 18 An attorney may seek an award of fees for representation of a Social Security claimant who is 19 awarded benefits: 20 Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine 21 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 22 entitled by reason of such judgment. . . . 23 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 24 controls fees awarded for representation of Social Security claimants). A contingency fee agreement 25 is unenforceable if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. at 807 26 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they 27 provide for fees exceeding 25 percent of the past-due benefits.”). 28 /// 1 III. Discussion and Analysis 2 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 3 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 4 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 5 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 6 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 7 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 8 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 9 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 10 Plaintiff entered into the contingent fee agreement in which he agreed to pay twenty-five 11 percent of any awarded past-due benefits. (Doc. 29-1 at 1) Counsel accepted the risk of loss in the 12 representation and expended a total of 17.2 hours while representing Plaintiff before the District Court. 13 (Doc. 29 at 5) Due to counsel’s work, the action was remanded further proceedings, and Plaintiff 14 received a favorable decision. For this, Mr. Safa requests a fee of $9,000, which is approximately 15 10.1% of the past-due benefits owed. (Doc. 29 at 6) Because counsel intends to refund the $3,000.00 16 that was previously paid under the EAJA, the net cost to Plaintiff is $6,000. (See id. at 13) Finally, 17 although served with the motion and informed of the right to oppose the fee request (id. at 17), Plaintiff 18 did not file oppose the request and thereby indicates an implicit belief that the total amount requested 19 for attorney fees is reasonable 20 Significantly, there is no indication that counsel performed in a substandard manner or engaged 21 in severe dilatory conduct. Plaintiff was able to secure a remand for payment of benefits following the 22 appeal, including an award of past-due benefits. Finally, the fees requested do not exceed twenty-five 23 percent maximum permitted under 42 U.S.C. §406(b) or the amount agreed upon by counsel and 24 Plaintiff. (See Doc. 29-1 at 1) 25 IV. Conclusion and Order 26 Based upon the tasks completed and results achieved following the remand for further 27 proceedings, the Court finds the fees sought by Mr. Safa and the Law Offices of Lawrence D. Rohlfing 28 are reasonable. Accordingly, the Court ORDERS: 1 1. Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of 2 $9,000.00 is GRANTED; 3 2. The Commissioner shall pay the amount directly to Counsel, the Law Offices of 4 Lawrence D. Rohlfing; and 5 3. Counsel SHALL refund $3,000.00 to Plaintiff Bryan Russell Pendergast. 6 7 IT IS SO ORDERED. 8 Dated: December 22, 2020 /s/ Jennifer L. Thurston 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28