(SS) Shaban 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 TERESA MARIE SHABAN, Case No. 1:19-cv-00111-SAB 12 Plaintiff, ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES 13 v. PURSUANT TO 42 U.S.C. § 406(b) 14 COMMISSIONER OF SOCIAL (ECF Nos. 29, 30) SECURITY, 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Petitioner Cyrus Safa (“Counsel” or “Petitioner”), attorney for Teresa Marie Shaban 20 (“Plaintiff”), filed the instant amended motion for attorney fees on January 3, 2022. (ECF No. 21 29.) Counsel requests fees in the net amount of $5,400.00 pursuant to 42 U.S.C. § 406(b)(1), 22 with a credit to Plaintiff for the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”) fee 23 in the amount of $3,000.00. Plaintiff did not file an opposition to the request. On January 4, 24 2022, the Commissioner of Social Security (“Defendant”) filed a response, specifying the filing 25 was made in a role resembling that of trustee for Plaintiff, and that Defendant takes no position 26 on the reasonableness of the fee. (ECF No. 18.) For the reasons discussed herein, Petitioner’s 27 motion for attorney fees shall be granted. /// 1 II. 2 BACKGROUND 3 On January 24, 2019, Plaintiff filed this action challenging the denial of social security 4 benefits. (ECF No. 1.) On January 27, 2020, the Court issued an order granting Plaintiff’s social 5 security appeal and remanding the matter for further administrative proceedings. (ECF No. 25.) 6 Judgment was entered for Plaintiff the same day. (ECF No. 26.) On April 24, 2020, a 7 stipulation for the award of attorney fees in the amount of $3,000.00 pursuant to the EAJA was 8 filed. (ECF No. 27.) The Court granted the parties’ stipulated request for attorney fees in the 9 amount of $3,000.00 on April 27, 2020. (ECF No. 28.) 10 Following remand, Defendant granted Plaintiff’s application for benefits, entitling 11 Plaintiff to receive approximately $61,899.00 in retroactive benefits. (See ECF No. 29 at 6.) 12 The Commissioner withheld $15,474.75 from the past-due benefit for attorney fees. (Id.) This 13 amount equals twenty-five percent (25%) of the retroactive benefit award. (Id. at 6 n.1.) In the 14 instant motion, Petitioner seeks an order awarding attorney fees in the lesser amount of 15 $5,400.00, and further ordering Petitioner to reimburse Plaintiff in the amount of $3,000.00 for 16 the EAJA fees previously paid. (Id. at 6.) 17 III. 18 LEGAL STANDARD 19 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 20 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 21 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 22 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 23 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 24 The Supreme Court has explained that a district court reviews a petition for section 25 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 26 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 27 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 1 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting 2 Gisbrecht, 535 U.S. at 793). The twenty-five percent maximum fee is not an automatic 3 entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 4 U.S. at 808–09 (“§ 406(b) does not displace contingent-fee agreements within the statutory 5 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 6 agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits 7 awarded are not enforceable. Gisbrecht, 535 U.S. at 807. The attorney has the burden of 8 demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 807 n.17; Crawford, 9 586 F.3d at 1148. 10 While the Supreme Court in Gisbrecht did not expressly “provide a definitive list of 11 factors that should be considered in determining whether a fee is reasonable or how those factors 12 should be weighed, the Court directed the lower courts to consider the ‘character of the 13 representation and the results the representative achieved.’ ” Crawford, 586 F.3d at 1151 14 (quoting Gisbrecht, 535 U.S. at 808). The Ninth Circuit has stated a court may weigh the 15 following factors under Gisbrecht in determining whether the fee was reasonable: (1) the 16 standard of performance of the attorney in representing the claimant; (2) whether the attorney 17 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 18 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 19 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 20 F.3d at 1151–52. 21 Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted 22 under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 23 1215, 1219 (9th Cir. 2012) (noting “the EAJA savings provision requires an attorney who 24 receives a fee award under § 2412(d) of the EAJA in addition to a fee award under § 406(b) for 25 the ‘same work’ to refund to the Social Security claimant the smaller award.”). 26 IV. 27 DISCUSSION 1 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 2 dated December 12, 2018, between Plaintiff and Petitioner provides that: “If this matter requires 3 judicial review of any adverse decision of the Social Security Administration, the fee for 4 successful prosecution of this matter is a separate 25% of the past due benefits awarded upon 5 reversal of any unfavorable ALJ decision for work before the court. Attorney shall seek 6 compensation under the Equal Access to Justice Act and such amount shall credit to the client for 7 fees otherwise payable for that particular work.” (Decl. Cyrus Safa (“Safa Decl.”) ¶ 2, ECF No. 8 29 at 20; Soc. Sec. Representation Agreement, Ex. 1, ECF No. 29-1 at 1.) Plaintiff has been 9 awarded retroactive benefits in the amount of $61,899.00. (ECF No. 29 at 6; Safa Decl. ¶ 4, Ex. 10 3, ECF No. 29-3 at 1.) 11 Consideration of the factors set forth in Gisbrecht and Crawford warrants no reduction of 12 the fee Petitioner seeks. There is no indication that a reduction of fees is warranted for 13 substandard performance. Counsel is an experienced, competent attorney who secured a 14 successful result for Plaintiff. (See Safa Decl. ¶¶ 3–7, 15.) There is no indication that Counsel 15 was responsible for any undue delay in the court proceedings: Counsel was granted one twenty- 16 eight-day extension of time to file the opening brief, but the extension was granted based upon a 17 sufficient showing of good cause; moreover, the Court expressly indicated a single thirty-day 18 extension of any part of the scheduling order would be permitted without need for Court- 19 approval. (ECF No. 29 at 6; ECF Nos. 12, 13, 14, 15; see also ECF No. 5-1 at 4.) 20 Plaintiff agreed to a twenty-five percent (25%) fee at the outset of the representation. 21 However, Petitioner is only seeking approximately 8.7% of the total retroactive award, or 22 $5,400.00. (ECF No. 29 at 8.) The Court finds the fee is not excessively large in relation to the 23 retroactive award of $61,899.00. In making this determination, the Court recognizes the 24 contingent nature of this case and the risk that counsel took of going uncompensated. Hearn v. 25 Barnhart, 262 F.Supp.2d 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. (Safa Decl. ¶ 5, Ex. 4, ECF No. 17-4 at 1–2.) The log demonstrates that Petitioner spent 1 seeking $5,400.00 for 16.9 hours of attorney and paralegal time. When considering the total 2 amount requested by Petitioner, the fee request translates to approximately $319.53 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. Jun. 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 CIV-S-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 the parties filed a stipulation on April 24, 2020, for the award of attorney fees in the amount of 24 $3,000.00 pursuant to the EAJA (ECF No. 27), which the Court granted on April 27, 2020 (ECF 25 No. 28). Accordingly, the Court shall order Petitioner to reimburse Plaintiff in the amount of 26 EAJA fees ultimately received in the amount of $3,000.00. 27 /// 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. Accordingly, IT IS HEREBY ORDERED that: 5 1. Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the 6 amount of $5,400.00 is GRANTED; 7 2. The Court authorizes payment to Petitioner in the amount of $5,400.00, 8 representing attorney fees being withheld from Plaintiff's past due disability 9 benefits; and 10 3. Upon receipt of this sum, Petitioner shall remit $3,000.00 directly to Plaintiff as 11 an offset for EAJA fees awarded pursuant to 298 U.S.C. § 2412. 12 3 IT IS SO ORDERED. FA. ee 14 | Dated: _ February 24, 2022 Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28