(SS) See 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 NAICHOU SEE, Case No. 1:19-cv-00436-BAK 12 Plaintiff, ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES 13 v. PURSUANT TO 42 U.S.C. § 406(b) SUBJECT TO RECEIPT OF SUPPLEMENTAL FILING 14 COMMISSIONER OF SOCIAL IN SUPPORT OF AWARD SECURITY, 15 (ECF Nos. 25, 30, 35) Defendant. 16 FIVE DAY DEADLINE 17 18 I. 19 INTRODUCTION AND BACKGROUND 20 On April 4, 2019, Plaintiff filed this action challenging the denial of social security 21 benefits. (ECF No. 1.) On December 30, 2019, pursuant to the parties’ stipulation, the Court 22 granted Plaintiff’s social security appeal, remanded the matter for further administrative 23 proceedings, and entered judgment in favor of Plaintiff. (ECF Nos. 20, 21, 22.) On January 29, 24 2020, a stipulation for the award of attorney fees in the amount of $2,100.00 pursuant to the 25 EAJA was filed. (ECF No. 23.) The Court granted the parties’ stipulated request for attorney 26 fees in the amount of $2,100.00 on January 30, 2020. (ECF No. 24.) 27 Petitioner Michael D. Donaldson (“Counsel” or “Petitioner”), attorney for Naichou See (“Plaintiff”), filed the instant motion for attorney fees on February 23, 2022. (ECF No. 25.) 1 Upon review of the motion, the Court ordered Counsel to serve the motion on the Plaintiff with 2 notice of the ability and timeframe to file any objection or response, and on March 31, 2022, 3 Counsel filed a certificate of service demonstrating service. (ECF Nos. 28, 29, 30.) Following 4 the expiration of the opposition period, upon further review of the motion, on April 22, 2022, the 5 Court ordered further evidentiary briefing to be filed in support of the motion, which Counsel 6 filed on April 25, 2022. (ECF Nos. 34, 35.) 7 Counsel requests fees in the amount of $16,421.91 pursuant to 42 U.S.C. § 406(b)(1). 8 (ECF No. 25.) Plaintiff did not file an opposition or objection to the motion, and Defendant 9 made no filing concerning the instant motion. For the reasons discussed herein, Petitioner’s 10 motion for attorney fees shall be granted, subject to this order being amended upon receipt of a 11 supplemental filing that clarifies and supports the conclusions made herein.1 12 II. 13 LEGAL STANDARD 14 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 15 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 16 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 17 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 18 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 19 The Supreme Court has explained that a district court reviews a petition for section 20 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 21 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 22 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 23 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 24 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting 25 Gisbrecht, 535 U.S. at 793). The twenty-five percent maximum fee is not an automatic 26 1 Specifically, as discussed herein, Petitioner’s filing does not specify whether the requested $16,421.91 figure 27 includes a credit to Plaintiff for the EAJA fee in the amount of $2,100.00, nor a statement that such fee will be offset, and further, the Petitioner’s filing does not provide the actual amount of past-due benefits awarded, but rather 1 entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 2 U.S. at 808–09 (“§ 406(b) does not displace contingent-fee agreements within the statutory 3 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 4 agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits 5 awarded are not enforceable. Gisbrecht, 535 U.S. at 807. The attorney has the burden of 6 demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 807 n.17; Crawford, 7 586 F.3d at 1148. 8 While the Supreme Court in Gisbrecht did not expressly “provide a definitive list of 9 factors that should be considered in determining whether a fee is reasonable or how those factors 10 should be weighed, the Court directed the lower courts to consider the ‘character of the 11 representation and the results the representative achieved.’ ” Crawford, 586 F.3d at 1151 12 (quoting Gisbrecht, 535 U.S. at 808). The Ninth Circuit has stated a court may weigh the 13 following factors under Gisbrecht in determining whether the fee was reasonable: (1) the 14 standard of performance of the attorney in representing the claimant; (2) whether the attorney 15 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 16 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 17 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 18 F.3d at 1151–52. 19 Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted 20 under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 21 1215, 1219 (9th Cir. 2012) (noting “the EAJA savings provision requires an attorney who 22 receives a fee award under § 2412(d) of the EAJA in addition to a fee award under § 406(b) for 23 the ‘same work’ to refund to the Social Security claimant the smaller award.”). 24 III. 25 DISCUSSION 26 The Court has conducted an independent check to insure the reasonableness of the 27 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 1 attorney 25% of all retroactive Social Security and SSI benefits that the Social Security 2 Administration says that I am entitled to receive . . . I hereby assign to my attorney my right to 3 obtain fees under 42 U.S.C. § 406 and 28 U.S.C. § 2412. My attorney may petition for fees 4 directly, and I agree that the check for fees will be made payable to my attorneys.” (ECF No. 35 5 at 4.) Counsel seeks $16,421.91 in attorney fees, proffering that such amount is 25% of the past- 6 due benefits awarded on January 28, 2022. (ECF No. 25 at 1-2.) However, Counsel did not 7 provide anywhere in the moving papers the total amount of the past-due benefits. Thus, the 8 Court is left to calculate what the total amount of past-due benefits apparently were awarded by 9 utilizing the requested fee amount. Thus, it appears that Plaintiff was awarded past due benefits 10 in the amount of $65,687.64, based on the requested 25% fee. However, the Court cannot be 11 certain. Thus, ultimately, while in the interest of expediency the Court will grant the instant 12 motion, this order will also require Counsel to submit another supplemental statement affirming 13 the amount of total past-due benefits awarded, as well as a statement affirming that the EAJA 14 fees will be offset from the attorney fee award or were already calculated within the request. 15 Turning to the billing records submitted by Plaintiff in supplemental briefing (ECF No. 16 35 at 6-12) and Plaintiff’s contentions made in the initially filed motion (ECF No. 25), 17 consideration of the factors set forth in Gisbrecht and Crawford warrants no reduction of the fee 18 Petitioner seeks. There is no indication that a reduction of fees is warranted for substandard 19 performance. Counsel secured a successful result for Plaintiff. While Counsel was ordered to 20 show cause why sanctions should not be imposed for failure to submit notice of the confidential 21 letter brief (ECF No. 12), the Court does not find a reduction in fees to be warranted for the 22 relatively short delay. 23 Plaintiff agreed to a twenty-five percent (25%) fee for representation. The Court does not 24 find the fee to be excessively large in relation to the assumed retroactive award of $65,687.64. 25 In making this determination, the Court recognizes the contingent nature of this case and the risk 26 that counsel took of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. 27 Cal. 2003). 1 action. (ECF No. 35.) The log appears to demonstrate that Petitioner (and in small part, a 2 paralegal), expended approximately 66.60 hours in relation to work before the agency, including 3 preparation of medical records and. (Id.) Therefore, Petitioner is seeking $16,421.91 in fees for 4 87.18 hours of work, or approximately $188.36 per hour. 5 In Crawford the Ninth Circuit found that fees of $519, $875, and $902 per hour, for time 6 of both attorneys and paralegals, was not excessive. Crawford, 486 F.3d at 1153 (Clifton, J., 7 concurring in part). Further, since Gisbrecht, courts note that reducing a fee request should not 8 be routinely done and find fee awards of an effective hourly rate much higher than this to be 9 reasonable. Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695, at *2 (C.D. Cal. 10 Nov. 13, 2018) (awarding fee request that provides an effective hourly rate of $1,553.36 per 11 hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502, at *3 (C.D. Cal. Jun. 21, 12 2018) (effective hourly rate of $1,431.94 reasonable under the circumstances); Palos v. Colvin, 13 No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (fees sought 14 translate to $1,546.39 per hour for attorney and paralegal services); see also Villa v. Astrue, No. 15 CIV-S-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. Cal. Jan. 7, 2010) (“In practice, the 16 more efficient counsel is in court, the higher will be the hourly fee amount represented in a § 406 17 fee award.”). 18 The Court finds that the requested fees are reasonable when compared to the amount of 19 work Petitioner performed in representing Plaintiff. Petitioner’s representation of the claimant 20 resulted in the action being remanded for further proceedings and ultimately, substantial benefits 21 were awarded. Even if the Court were to substantially reduce the number of hours contained in 22 the spreadsheet pertaining to the claimed 66.6 hours of work before the agency, the resultant fee 23 would not appear unreasonable in light of the above caselaw. 24 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 25 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, as noted above, 26 the parties stipulated, and the Court entered, an award of attorney fees in the amount of 27 $2,100.00 pursuant to the EAJA. Accordingly, the Court shall order Petitioner to reimburse IRI IO ISI RII IE IE IOI IIE IIE OIE III EEE 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 $16,421.91 is GRANTED; 7 2. The Court authorizes payment to Petitioner in the amount of $16,421.91, 8 representing attorney fees being withheld from Plaintiff's past due disability 9 benefits; 10 3. Upon receipt of this sum, Petitioner shall remit $2,100.00 directly to Plaintiff as 11 an offset for EAJA fees awarded pursuant to 298 U.S.C. § 2412; 12 4. Within five (5) days of entry of this order, Petitioner shall submit supplemental 13 briefing clarifying and confirming the Court’s determinations made herein 14 concerning the total amount of the past-due award amount, and that the EAJA 15 offset of $2,100 has not already been factored into the requested and awarded 16 amount of $16,421.917; and 17 5. This order is subject to amendment in relation to the forthcoming supplement. 18 19 IT IS SO ORDERED. DAM Le 20 | Dated: _May 6, 2022 __ OO UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 2 while the Court finds it was able to grant the motion on a contingent basis by piecing together information in the 27 | motion and supplemental briefing, in future filings, Counsel is expected to provide clear statements concerning the requested fees, the amount of past-due benefits awarded, and clear statements explaining the meaning and 28 | breakdown of the hours of any billing spreadsheets submitted to the Court in support of attorney fee motions.