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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRACIE STILL, No. 1:11-cv-00637-NONE-EPG 12 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY’S FEES 13 v. (ECF No. 26) 14 COMMISSIONER OF SOCIAL SECURITY, ORDER SEALING DOCKET NUMBERS 26-2 15 AND 26-3 AND REQUIRING COUNSEL TO Defendant. RE-FILE SUCH DOCUMENTS WITH 16 PROPER REDACTION 17 18 Sengthiene Bosavanh (“Counsel”) of the Offices of Jeffrey Milam Law, attorney for 19 Tracie Still (“Plaintiff”), filed a Motion for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) on 20 November 16, 2015. (ECF No. 26). Plaintiff was served with the motion. (ECF No. 26-5). 21 Plaintiff has not filed any opposition to the motion. The Commissioner filed a response to the 22 motion on November 20, 2015 and indicated that it has no opposition to the motion. (ECF No. 23 27). On March 3, 2021, this case was reassigned and changed from case number 1:11-cv-00637- 24 LJO-DLB to 1:11-cv-00637-NONE-EPG. 25 For the reasons set forth below, the motion for attorney’s fees is granted. In addition, as 26 set forth below, the Court seals certain documents that contain Plaintiff’s full Social-Security 27 number and requires Plaintiff’s counsel to re-file such documents with the proper redaction. 28 /// 1 I. BACKGROUND 2 On April 11, 2011, Plaintiff commenced this action for judicial review of a final denial of 3 an application for disability benefits under the Social Security Act by the Commissioner of the 4 Social Security Administration. (ECF No. 1). On March 12, 2012, the Court entered an order 5 granting Plaintiff’s appeal and remanding the action to the Commissioner. (ECF No. 21). On July 6 10, 2012, the Court entered an award of $5,500 for attorney fees under the Equal Access to 7 Justice Act (“EAJA”). (ECF No. 25). 8 On July 30, 2015, Plaintiff received a fully favorable award from the Commissioner. (ECF 9 No. 26-2). In October 2015,1 the Commissioner informed Plaintiff that it was withholding 10 $16,861 from her past-due benefits “in case we need to pay your lawyer,” and indicated that that 11 amount constituted 25% of Plaintiff’s past-due benefits. (ECF No. 26-3 at 3). 12 On November 16, 2015, Counsel filed a motion for attorneys’ fees. The motion seeks 13 $16,861 in attorneys’ fees under 42 U.S.C. § 406(b) and an order for Counsel to release to 14 Plaintiff $5,500 in fees previously received under the Equal Access to Justice Act. (ECF No. 26). 15 Counsel contends these fees are reasonable against the 40.3 hours of work conducted under the 16 contingency fee agreement, which permits Counsel to retain 25% of the past-due benefits. 17 II. DISCUSSION 18 A. Motion for Attorney’s Fees 19 Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in 20 which they have successfully represented social security claimants. Section 406(b) provides the 21 following in relevant part: 22 Whenever a court renders a judgment favorable to a claimant under this 23 subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such 24 representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner 25 of Social Security 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. 26 27 42 U.S.C.A. § 406(b)(1)(A) (West 2015) (emphasis added). “In contrast to fees awarded under 28 1 The exact date is unreadable. (ECF No. 26-3 at 1). 1 fee-shifting provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past- 2 due benefits awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 3 F.3d 1142, 1147 (9th Cir.2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. at 789, 802 4 (2002)). However, the Commissioner has standing to challenge the award, despite the fact that 5 the Section 406(b) attorney's fee award is not paid by the government. Craig v. Sec ‘y Dep't of 6 Health & Human Servs., 864 F.2d 324, 328 (4th Cir.1989), abrogated on other grounds in 7 Gisbrecht, 535 U.S. at 807. The goal of fee awards under Section 406(b) is to provide adequate 8 incentive to represent claimants while ensuring that the usually meager disability benefits 9 received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir.1989), abrogated 10 on other grounds in Gisbrecht, 535 U.S. at 807. 11 The twenty-five percent (25%) maximum fee is not an automatic entitlement, and courts 12 are required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (Section 13 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, Section 14 406(b) instructs courts to review for reasonableness fees yielded by those agreements). “Within 15 the 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought 16 is reasonable for the services rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding 17 that Section 406(b) “does not specify how courts should determine whether a requested fee is 18 reasonable” but “provides only that the fee must not exceed 25% of the past-due benefits 19 awarded”). 20 Generally, “a district court charged with determining a reasonable fee award under § 21 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’. . . ‘looking 22 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at 23 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified 24 several factors that may be considered in determining whether a fee award under a contingent-fee 25 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the 26 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in 27 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 28 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 1 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent 2 cases. Id. (citing Gisbrecht, 535 U.S. at 807–08). 3 Here, Plaintiff entered into a fee agreement that provides for attorney’s fees in the amount 4 of 25% of the past-due benefits. (ECF No. 26-1). The Court has considered Counsel’s 5 representation of Plaintiff and the results achieved by counsel. Counsel indicates Counsel 6 expended a total of 40.3 hours litigating Plaintiff's case. (ECF No. 26-4 at 2-4). This represents an 7 hourly rate of $418.39. There is no indication that a reduction of the award is warranted due to 8 any substandard performance by counsel in this matter. Counsel is an experienced attorney who 9 secured a successful result for Plaintiff. There is also no evidence that counsel engaged in any 10 dilatory conduct resulting in excessive delay. Thus, the requested fee amount is not excessive in 11 relation to the past-due award. See generally, Shepard v. Comm’n of Social Security, No. 1:14- 12 cv-1166 SMS, 2016 WL 3549261 (E.D. Cal. June 29, 2016) (granting $17,125.00 pursuant to 13 Section 406(b)); Schneider v. The Comm’n of Soc. Sec., No. 14-cv-00034 SKO, 2016 WL 14 2654228 (E.D. Cal., May 10, 2016) (granting $10,253.96); Whiteside v. The Comm’n of Soc. Sec., 15 No. 1:13-cv-1337-BAM, 2015 WL 36545054 (E.D. Cal., June 11, 2015) (granting $6,000.00). In 16 making this determination, the Court recognizes the contingent-fee nature of this case and 17 counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. See Hearn v. 18 Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal.2003) (“Because attorneys [] contend with a 19 substantial risk of loss in Title II cases, an effective hourly rate of only $450 in successful cases 20 does not provide a basis for this court to lower the fee to avoid a windfall.”). 21 Counsel received $5,500 in EAJA fees previously. An award of § 406(b) fees must be 22 offset by any prior award of attorney fees granted under the EAJA. See 28 U.S.C. § 2412; 23 Gisbrecht, 535 U.S. at 796. Counsel was previously awarded $5,500 in fees pursuant to the 24 EAJA; as such, the § 406(b) award will be offset by $5,500. 25 B. Sealing and Re-Filing Certain Papers 26 Under Federal Rule of Civil Procedure 5.2(a), only the last four digits of a Social-Security 27 number may be visible in filings. Fed. R. Civ. P. 5.2(a) (West 2015) (“Unless the court orders 28 otherwise, in an electronic or paper filing with the court that contains an individual’s social- 1 | security number .. . the filing may include only: (1) the last four digits of the social-security 2 | number .. .”). Plaintiffs full Social-Security number is shown on almost every page of docket 3 | number 26-2 and on every page of docket number 26-3. As such, the Court will seal those 4 | documents and Counsel shall re-file such sealed documents in compliance with Federal Rule of 5 | Civil Procedure 5.2(a). 6 | Il. CONCLUSION AND ORDER 7 For the reasons stated above, the fees sought by Counsel pursuant to Section 406(b) are 8 || reasonable. Accordingly, IT IS HEREBY ORDERED that: 9 1. The Motion for Attorney’s Fees pursuant to Section 406(b) in the amount of $16,861, 10 (ECF No. 26), is GRANTED; 11 2. Counsel is ordered to reimburse Plaintiff $5,500 of the § 406(b) fees awarded as an 12 offset for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d); 13 3. Counsel is directed to send a copy of this order to Plaintiff; 14 4. The Clerk of Court is directed to SEAL docket numbers 26-2 and 26-3; and 15 5. Within thirty days of the date of this Order, Counsel shall re-file such sealed 16 documents, and such filings shall comply with Federal Rule of Civil Procedure 5.2(a). IS SO ORDERED. 18 | Dated: _ March 23, 2021 [see ey — 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28