(SS) Gillaspy v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN GREGORY GILLASPY, Case No. 1: 19-cv-01666-SAB 12 Plaintiff, ORDER ENTERING STIPULATION FOR AWARD OF EAJA FEES AND GRANTING 13 v. PETITIONER’S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 15, 16, 17, 18) 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Petitioner Matthew F. Holmberg (“Counsel” or “Petitioner”), attorney for Shawn Gregory 20 Gillaspy (“Plaintiff”), filed the instant amended motion for attorney fees on November 16, 2021. 21 (Mot. Att’y Fees (“Mot.”), ECF No. 17.) Counsel requests fees in the net amount of $2,902.73 22 pursuant to 42 U.S.C. § 406(b)(1), with a credit to Plaintiff for the Equal Access to Justice Act, 23 28 U.S.C. § 2412(d) (“EAJA”) fee in the amount ultimately awarded once Counsel receives such 24 fee. Plaintiff was served with the motion and advised that any opposition to the motion was to 25 be filed within fourteen days. (Mot. 2, 12.) Plaintiff did not file an opposition to the request. 26 On March 10, 2020, the Commissioner of Social Security (“Defendant”), filed a response, 27 specifying the filing was made in a role resembling that of trustee for Plaintiff, and that Defendant takes no position on the reasonableness of the fee. (Def.’s Response Mot. Att’y Fees 1 (“Response”), ECF No. 18.) For the reasons discussed herein, Petitioner’s motion for attorney 2 fees shall be granted. 3 II. 4 BACKGROUND 5 On November 26, 2019, Plaintiff filed this action challenging the denial of social security 6 benefits. (ECF No. 1.) Following service of Plaintiffs confidential letter brief, on June 22, 2020, 7 the Court entered the parties’ stipulation for remand and entered judgment in favor of Plaintiff. 8 (ECF Nos. 11, 12, 13, 14.) On July 15, 2020, a stipulation for the award of attorney fees in the 9 amount of $1,475.74 pursuant to the EAJA was filed. (ECF No. 15.) However, the stipulation 10 was never expressly entered or approved by the Court, and has remained unaddressed on the 11 docket since the filing. 12 Following remand, the Defendant granted Plaintiff’s application for benefits, entitling 13 Plaintiff to receive $51,610.92 in retroactive benefits. (Mot. 4.) The Commissioner withheld 14 $12,902.73 from the past-due benefit for attorney fees. (Id.) This amount equals twenty-five 15 percent (25%) of the retroactive benefit award. (Id. at 4 n.1.) In the instant motion, Petitioner 16 seeks an order awarding attorney fees in the lesser amount of $2,902.73, and further ordering 17 Petitioner to reimburse Plaintiff in the amount of the EAJA fee once it is awarded and received. 18 (Mot. 4.) 19 III. 20 LEGAL STANDARD 21 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 22 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 23 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 24 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 25 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 26 The Supreme Court has explained that a district court reviews a petition for section 27 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 1 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 2 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 3 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting 4 Gisbrecht, 535 U.S. at 793). The twenty-five percent maximum fee is not an automatic 5 entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 6 U.S. at 808–09 (“§ 406(b) does not displace contingent-fee agreements within the statutory 7 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 8 agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits 9 awarded are not enforceable. Gisbrecht, 535 U.S. at 807. The attorney has the burden of 10 demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 807 n.17; Crawford, 11 586 F.3d at 1148. 12 While the Supreme Court in Gisbrecht did not expressly “provide a definitive list of 13 factors that should be considered in determining whether a fee is reasonable or how those factors 14 should be weighed, the Court directed the lower courts to consider the ‘character of the 15 representation and the results the representative achieved.’ ” Crawford, 586 F.3d at 1151 16 (quoting Gisbrecht, 535 U.S. at 808). The Ninth Circuit has stated a court may weigh the 17 following factors under Gisbrecht in determining whether the fee was reasonable: (1) the 18 standard of performance of the attorney in representing the claimant; (2) whether the attorney 19 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 20 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 21 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 22 F.3d at 1151-52. 23 Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted 24 under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 25 1215, 1219 (9th Cir. 2012) (noting “the EAJA savings provision requires an attorney who 26 receives a fee award under § 2412(d) of the EAJA in addition to a fee award under § 406(b) for 27 the ‘same work’ to refund to the Social Security claimant the smaller award.”). 1 IV. 2 DISCUSSION 3 The Court has conducted an independent check to insure the reasonableness of the 4 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 5 dated October 16, 2019, between Plaintiff and Petitioner provides that: “If this matter requires 6 judicial review of any adverse decision of the Social Security Administration, the fee for 7 successful prosecution of this matter is a separate 25% of the past due benefits awarded upon 8 reversal of any unfavorable ALJ decision for work before the court. Attorney shall seek 9 compensation under the Equal Access to Justice Act and such amount shall credit to the client for 10 fees otherwise payable for that particular work.” (Decl. Matthew F. Holmberg (“Holmberg 11 Decl.”) ¶ 2, ECF No. 17 at 10; Social Security Representation Agreement (“Agreement”), Ex. 1, 12 ECF No. 17-1 at 1.) Plaintiff has been awarded retroactive benefits in the amount of $51,610.92. 13 (Mot. 3; Holmberg Decl. ¶ 4, Ex. 3, ECF No. 17-3 at 1.) 14 Consideration of the factors set forth in Gisbrecht and Crawford warrants no reduction of 15 the fee Petitioner seeks. There is no indication that a reduction of fees is warranted for 16 substandard performance. Counsel is an experienced, competent attorney who secured a 17 successful result for Plaintiff. (Holmberg Decl. ¶¶ 3-7.) There is no indication that Counsel was 18 responsible for any delay in the court proceedings, with no extensions of time requested for 19 briefing by Plaintiff’s counsel. (Mot. 4; ECF Nos. 17, 20.) 20 Plaintiff agreed to a twenty-five percent (25%) fee at the outset of the representation. 21 However, Petitioner is only seeking approximately 5.6% of the total retroactive award, or 22 $2,902.73. The Court finds the fee is not excessively large in relation to the retroactive award of 23 $51,610.92. In making this determination, the Court recognizes the contingent nature of this 24 case and the risk that counsel took of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 25 1033, 1037 (N.D. Cal. 2003). 26 In support of the motion, Petitioner submitted a log of the time spent in prosecuting this 27 action. (Holmberg Decl. ¶ 5, Ex. 4, ECF No. 17-4 at 1-2.) The log demonstrates that Petitioner 1 is seeking $2,902.73 for 8.2 hours of attorney and paralegal time. When considering the total 2 amount requested by Petitioner, the fee request translates to approximately $353.99 per hour for 3 the services provided in this action. 4 In Crawford the Ninth Circuit found that fees of $519, $875, and $902 per hour, for time 5 of both attorneys and paralegals, was not excessive. Crawford, 486 F.3d at 1153 (Clifton, J., 6 concurring in part). Further, since Gisbrecht, courts note that reducing a fee request should not 7 be routinely done and find fee awards of an effective hourly rate much higher than this to be 8 reasonable. Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695, at *2 (C.D. Cal. 9 Nov. 13, 2018) (awarding fee request that provides an effective hourly rate of $1,553.36 per 10 hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502, at *3 (C.D. Cal. June 21, 11 2018) (effective hourly rate of $1,431.94 reasonable under the circumstances); Palos v. Colvin, 12 No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (fees sought 13 translate to $1,546.39 per hour for attorney and paralegal services); see also Villa v. Astrue, No. 14 CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. Cal. Jan. 7, 2010) (“In practice, the 15 more efficient counsel is in court, the higher will be the hourly fee amount represented in a § 406 16 fee award.”). 17 The Court finds that the requested fees are reasonable when compared to the amount of 18 work Petitioner performed in representing Plaintiff. Petitioner’s representation of the claimant 19 resulted in the action being remanded for further proceedings and ultimately, substantial benefits 20 were awarded. 21 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 22 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, as noted above, 23 while the parties filed a stipulation on July 15, 2020, for the award of attorney fees in the amount 24 of $1,475.74 pursuant to the EAJA, (ECF No. 15), the stipulation was never expressly entered or 25 approved by the Court. Accordingly, the Court shall enter and give effect to the previously filed 26 stipulation, and order Petitioner to reimburse Plaintiff in the amount of EAJA fees ultimately 27 received in the amount of $1,475.74. 1 V. 2 CONCLUSION AND ORDER 3 For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to 4 | Section 406(b) are reasonable, and that the parties’ stipulation for the award of EAJA fees filed 5 | July 15, 2020, shall be approved and entered. Accordingly, IT IS HEREBY ORDERED that: 6 1. Pursuant to the stipulation of the parties (ECF No. 15), Plaintiff is awarded 7 attorney fees and expenses under the EAJA in the amount of $1,475 7A!; 8 2. Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the 9 amount of $2,902.73 is GRANTED; 10 3. The Court authorizes payment to Petitioner in the amount of $2,902.73, 11 representing attorney fees being withheld from Plaintiff's past due disability 12 benefits; and 13 4. Upon receipt of this sum, Petitioner shall remit $1,475.74 directly to Plaintiff as 14 an offset for EAJA fees awarded pursuant to 298 U.S.C. § 2412. 15 16 IT IS SO ORDERED. DAM Le 17 | Dated: _ January 12, 2022 _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 While the stipulation refers to $1,475.74 in fees and expense, the motion for attorney fees only refers to the amount of fee of $1,455.84. The Court shall award the higher amount as originally stipulated under the EAJA that is 28 | inclusive of expenses and fees.