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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GEORGE FLEMING, No. 2:16-cv-02811 AC 11 Plaintiff, 12 v. ORDER 13 ANDREW SAUL, Commissioner of Social Security, 14 15 Defendant. 16 17 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 18 (“Commissioner”), denying his application for a period of disability and disability insurance 19 benefits (“DIB”) benefits under Title II of the Social Security Act (“the Act”). On May 22, 2018, 20 the court granted plaintiff’s motion for summary judgment, denied the Commissioner’s cross- 21 motion for summary judgment, and remanded the action to the Commissioner with instructions to 22 award benefits. ECF No. 22. 23 Now pending before the court is plaintiff’s December 5, 2019 motion for an award of 24 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 25. Defendant has not submitted a 25 response. For the reasons set forth below, the motion will be granted. 26 I. REASONABLENESS OF FEE REQUEST 27 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 28 agreement. ECF No. 26-3. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 1 fees in the amount of $19,788.37, which represents 25% of the $75,868.50 in retroactive 2 disability benefits received by plaintiff on remand through April 2018. ECF Nos. 26 at 2; 26-3 at 3 20-3. 4 Attorneys are entitled to fees for cases in which they have successfully represented social 5 security claimants: 6 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 7 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 8 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 9 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. 10 11 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 12 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 13 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 14 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 15 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 16 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 17 Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 18 535 U.S. at 805). 19 The 25% statutory maximum fee is not an automatic entitlement, and the court must 20 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 21 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 22 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 23 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 24 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 25 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 26 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 27 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 28 //// 1 In determining whether the requested fee is reasonable, the court considers “‘the character 2 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 3 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 4 the court considers whether the attorney provided “substandard representation or delayed the 5 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 6 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 7 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 8 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 9 labor required”). Below, the court will consider these factors in assessing whether the fee 10 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 11 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 12 plaintiff. See Declaration of Bess M. Brewer (“Brewer Decl.”) (ECF No. 26-2). There is no 13 indication that a reduction of fees is warranted due to any substandard performance by counsel. 14 There is also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in 15 excessive delay. The court finds that the $19,788.37 fee, which represents 25% of the $75,868.50 16 in past-due benefits paid to plaintiff through April 2018, is not excessive in relation to the benefits 17 awarded. In making this determination, the court recognizes the contingent fee nature of this case 18 and counsel’s assumption of the risk of going uncompensated in agreeing to represent plaintiff on 19 such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant risk in 20 accepting these cases, including the risk that no benefits would be awarded or that there would be 21 a long court or administrative delay in resolving the cases”). 22 Accordingly, for the reasons stated above, the court concludes that the fees sought by 23 counsel pursuant to § 406(b) are reasonable. 24 II. OFFSET FOR EAJA FEES 25 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 26 under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 27 Here, plaintiff’s attorney was previously awarded $6,600.00 in EAJA fees. See ECF No. 26-2 at 28 2, ECF No. 25. Counsel therefore must remit that amount to plaintiff. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 26), is 3 | GRANTED; 4 2. Counsel for plaintiff is awarded $19,788.37 in attorney’s fees under § 406(b); the 5 |} Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 6 || for the payment of such fees; and 7 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $6,600.00 for EAJA 8 || fees previously paid to counsel by the Commissioner. 9 | DATED: January 2, 2020 . 10 Hthren— Llane ll ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28