(SS) Hudson v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD WILLIAM HUDSON, No. 2:17-CV-0589-DMC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brought this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Final judgement was entered on September 24, 2018. See ECF No. 24. Pending before the Court 21 is Plaintiff’s counsel’s motion for an award of attorney’s fees in the amount of $25,200.00 under 22 42 U.S.C. § 406(b). See ECF No. 28. Plaintiff was provided notice of counsel’s motion and has 23 not filed any response thereto. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL HISTORY 2 Plaintiff’s representation in this case was provided by way of a March 15, 2017, 3 contingent fee agreement whereby Plaintiff agreed to pay counsel 25% of all past-due benefits 4 awarded by the agency. See ECF No. 28-2, pgs. 2-3. Plaintiff initiated this action for judicial 5 review of an unfavorable administrative decision on March 20, 2017. See ECF No. 1. Following 6 briefing on the merits, the Court issued a memorandum opinion and order and the matter was 7 remanded on September 20, 2018, for further administrative proceedings. See ECF Nos. 23 and 8 24. Plaintiff was awarded $6,118.24 in attorney’s fees and costs under the Equal Access to 9 Justice Act (EAJA), payable to Plaintiff less any offsets to be determined by the government. See 10 ECF No. 27. 11 On October 19, 2020, the agency provided Plaintiff notice that his application had 12 been granted, that he was awarded $124,800.00 in past-due benefits, that $31,200.00 had been 13 withheld, representing 25% due to counsel pursuant to the fee agreement, and that $6,000.00 had 14 also been withheld for work done at the agency level following remand. See ECF No 28-4, pgs. 15 4-6. In his declaration, Plaintiff’s counsel states that the agency level representative either has or 16 will be receiving the $6,000.00 withheld for work at the agency level. See ECF No. 28-1, pg. 2. 17 Plaintiff’s counsel now seeks the remainder withheld by the agency – $25,200.00 – and agrees 18 with reimburse Plaintiff the amount previously paid in EAJA fees and costs. 19 20 II. DISCUSSION 21 Under the Social Security Act, “[w]henever a court renders a judgment favorable 22 to a claimant under this subchapter who was represented before the court by an attorney, the court 23 may determine and allow as part of its judgment a reasonable fee for such representation, not in 24 excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of 25 such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such 26 representation except as allowed in this provision. See id. 27 / / / 28 / / / 1 A remand constitutes a “favorable judgment” under § 406(b). See Shalala v. 2 Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the 3 issue, all other circuits to address the issue have concluded that the district court is authorized to 4 award fees under § 406(b) when it remands for further proceedings and, following remand, the 5 claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D. 6 Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due 7 benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen 8 v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). 9 The 25 percent statutory maximum fee is not an automatic entitlement, and the 10 court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535 11 U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful 12 claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In 13 determining the reasonableness of fees sought, the district court must respect ‘the primacy of 14 lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then 15 testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting 16 Gisbrecht, 535 U.S. at 793 and 808). 17 The Supreme Court has identified five factors that may be considered in 18 determining whether a fee award under a contingent-fee agreement is unreasonable and therefore 19 subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. 20 at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the 21 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 22 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 23 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 24 counsel’s regular hourly billing charge for non-contingent cases. See id. 25 Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s 26 fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796. 27 / / / 28 / / 1 The Commissioner has not filed a response to Plaintiff's counsel’s motion. In this 2 || case, having considered the factors above, the Court finds Plaintiff's counsel’s request reasonable 3 | given the fee agreement with Plaintiff, the results achieved, and the lack of any evidence of 4 | dilatory conduct designed to increase past-due benefits. In making this finding, the Court notes 5 | that counsel has previously been awarded $6,118.24 under the EAJA, which Plaintiffs counsel 6 | appropriately asks be ordered to offset any award requested in the current motion. 7 8 I. CONCLUSION 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's counsel’s motion, ECF No. 28, is granted and counsel is 11 awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $25,200.00, paid to counsel by the 12 | Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld on 13 | October 19, 2020, to the extent such benefits have not already been paid to Plaintiff; and 14 2. Counsel shall reimburse to Plaintiff $6,118.24.00 previously paid to 15 counsel under the EAJA. 16 17 | Dated: December 10, 2021 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28