(SS) Ware III v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERICK K. AMBROSE WARE III, No. 2:21-cv-0203 AC 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application benefits under the Social Security Act (“the Act”). 20 On September 12, 2022, the court granted plaintiff’s motion for summary judgment, denied the 21 Commissioner’s motion, and reversed and remanded the action to the Commissioner for further 22 proceedings. ECF Nos. 24, 25. Plaintiff was awarded benefits on remand. ECF No. 29 at 2. 23 Now pending before the court is plaintiff’s July 25, 2023 motion for an award of 24 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 29. Defendant filed a response and does 25 not oppose the fee request. ECF No. 32. For the reasons set forth below, the motion will be 26 granted. 27 /// 28 /// 1 I. REASONABLENESS OF FEE REQUEST 2 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 3 agreement. ECF No. 31. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s fees 4 in the net amount of $25,500.00 which represents less than 25% of the $191,752.90 in retroactive 5 disability benefits received by plaintiff on remand, for 31.75 hours of attorney time expended on 6 this matter. ECF Nos. 29 at 2, 8. 7 Attorneys are entitled to fees for cases in which they have successfully represented social 8 security claimants: 9 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 10 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 11 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 12 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. 13 14 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 15 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 16 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 17 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 18 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 19 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 20 Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 21 535 U.S. at 805). 22 The 25% statutory maximum fee is not an automatic entitlement, and the court must 23 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 24 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 25 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 26 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 27 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 28 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 1 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 2 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 3 In determining whether the requested fee is reasonable, the court considers “‘the character 4 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 5 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 6 the court considers whether the attorney provided “substandard representation or delayed the 7 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 8 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 9 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 10 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 11 labor required”). Below, the court will consider these factors in assessing whether the fee 12 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 13 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 14 plaintiff. There is no indication that a reduction of fees is warranted due to any substandard 15 performance by counsel. There is also no evidence that plaintiff’s counsel engaged in any 16 dilatory conduct resulting in excessive delay. The court finds that the $25,500.00 fee, which does 17 not exceed 25% of the amount paid in past-due benefits paid to plaintiff, is not excessive in 18 relation to the benefits awarded. In making this determination, the court recognizes the 19 contingent fee nature of this case and counsel’s assumption of the risk of going uncompensated in 20 agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys 21 assumed significant risk in accepting these cases, including the risk that no benefits would be 22 awarded or that there would be a long court or administrative delay in resolving the cases”). 23 Finally, counsel has submitted a detailed billing statement in support of the requested fee. ECF 24 No. 29 at 6-8. 25 Accordingly, for the reasons stated above, the court concludes that the fees sought by 26 counsel pursuant to § 406(b) are reasonable. 27 /// 28 /// 1 Il. OFFSET FOR EAJA FEES 2 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 3 || under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 4 | Here, plaintiffs attorney was previously awarded $5,500 in EAJA fees. See ECF No. 28. 5 || Counsel therefore must remit that amount to plaintiff. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 34), is 8 | GRANTED; 9 2. Counsel for plaintiff is awarded $25,500.00 in attorney’s fees under § 406(b); the 10 || Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 11 | for the payment of such fees; and 12 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $5,500.00 for EAJA 13 || fees previously paid to counsel by the Commissioner. 14 | DATED: September 12, 2023. 15 ~ 16 ththienr—Chnp—e_ ALLISON CLAIRE 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28