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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERESA A. SAWATZKY, No. 2:16-cv-02770 AC 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 This case was remanded to the Commissioner of Social Security (“Commissioner”) for 19 further consideration on February 13, 2019. ECF Nos. 27 (Order) and 38 (Judgment). Now 20 pending before the court is plaintiff’s August 19, 2020 motion for an award of attorney’s fees 21 pursuant to 42 U.S.C. § 406(b). ECF No. 41. Defendant did not file an opposition. For the 22 reasons set forth below, the motion will be granted. 23 I. REASONABLENESS OF FEE REQUEST 24 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 25 agreement. ECF No. 41-3. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 26 fees in the amount of $16,270.50, which represents 25% of the $65,082.00 in retroactive 27 disability benefits received by plaintiff on remand, for 42 hours of attorney time expended on this 28 matter. ECF Nos. 41 at 1, 41-4 at 2-4. 1 Attorneys are entitled to fees for cases in which they have successfully represented social 2 security claimants: 3 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 4 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 5 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 6 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. 7 8 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 9 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 10 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 11 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 12 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 13 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 14 Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 15 535 U.S. at 805). 16 The 25% statutory maximum fee is not an automatic entitlement, and the court must 17 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 18 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 19 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 20 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 21 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 22 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 23 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 24 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 25 In determining whether the requested fee is reasonable, the court considers “‘the character 26 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 27 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 28 the court considers whether the attorney provided “substandard representation or delayed the 1 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 2 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 3 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 4 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 5 labor required”). Below, the court will consider these factors in assessing whether the fee 6 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 7 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 8 plaintiff. See Declaration of Shellie Lott, Esq. (“Lott Decl.”), ECF No. 41-4. There is no 9 indication that a reduction of fees is warranted due to any substandard performance by counsel. 10 There is also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in 11 excessive delay. The court finds that the $16,270.50 fee, which represents 25% of the past-due 12 benefits paid to plaintiff, is not excessive in relation to the benefits awarded. In making this 13 determination, the court recognizes the contingent fee nature of this case and counsel’s 14 assumption of the risk of going uncompensated in agreeing to represent plaintiff on such terms. 15 See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant risk in accepting these 16 cases, including the risk that no benefits would be awarded or that there would be a long court or 17 administrative delay in resolving the cases”). Finally, counsel has submitted a detailed billing 18 statement in support of the requested fee. ECF No. 41-4. 19 Accordingly, for the reasons stated above, the court concludes that the fees sought by 20 counsel pursuant to § 406(b) are reasonable. 21 II. OFFSET FOR EAJA FEES 22 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 23 under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 24 Here, plaintiff’s attorney was previously awarded $5,501.57 in EAJA fees. See ECF No. 31. 25 Counsel therefore must remit that amount to plaintiff. 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 41), is 28 GRANTED; 6 EE EEN MMU I eT EN AY ST Mt 1 2. Counsel for plaintiff is awarded $16,270.50 in attorney’s fees under § 406(b); the 2 || Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 3 || for the payment of such fees; and 4 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $8,600.00 for EAJA 5 || fees previously paid to counsel by the Commissioner. 6 || DATED: September 23, 2020 ~ 7 Htttenr— Llane ALLISON CLAIRE 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28