Bunn v. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 KEISHNA BUNN, Case No. 3:18-cv-00384-LB 12 Plaintiff, ORDER GRANTING THE 13 v. PLAINTIFF’S COUNSEL’S MOTION FOR ATTORNEY’S FEES 14 NANCY A. BERRYHILL, Re: ECF No. 36 15 Defendant. 16 17 INTRODUCTION 18 The court previously granted the plaintiff’s motion for summary judgment and remanded the 19 action to the Social Security Administration for further proceedings.1 On remand, the plaintiff 20 received a past-due benefits award.2 Her counsel now seeks fees of $17,987.46, which is within 21 the 25-percent limit in 42 U.S.C. § 406(b) and the representation agreement with his client.3 The 22 court can decide this matter without oral argument. See Civil L.R. 7-1(b). The court grants the 23 motion.4 24 25 1 See Order – ECF No. 31. Citations refer to material in the Electronic Case File (“ECF”); pinpoint 26 citations are to the ECF-generated page numbers at the top of documents. 2 Notice of Award – ECF No. 36-3 at 1–3. 27 3 Motion for Attorney’s Fees – ECF No. 36. 1 STATEMENT 2 The Commissioner awarded the plaintiff $72,632.56.5 The court previously awarded $3,949.80 3 in attorney’s fees under the Equal Access to Justice Act (“EAJA”).6 4 The plaintiff has a fee agreement with her lawyer that provides for a 25-percent contingency 5 fee of the award as of the final decision, which makes $71,949.84 the relevant amount.7 The 6 plaintiff’s attorney seeks $17,987.46 in fees, which is within 25 percent of $71,949.84. The 7 Commissioner filed a response to the plaintiff’s motion asking the court to consider the 8 reasonableness of the fee award (including the plaintiffs’ counsel’s multiple requests for 9 extensions) and order the plaintiff’s counsel to refund the EAJA fees to the plaintiff.8 The 10 plaintiff’s counsel agreed that he will refund the EAJA fees and send $500.00 to “acknowledge the 11 multiple extensions.”9 12 ANALYSIS 13 Under 42 U.S.C. § 406(b), “[w]henever a court renders a judgment favorable to a [social 14 security] claimant . . . , the court may determine and allow as part of its judgment a reasonable 15 fee” for the claimant’s counsel, which can be no more than 25 percent of the total of past-due 16 benefits awarded to the claimant. 42 U.S.C. § 406(b)(1)(A). A court may award such a fee even if 17 the court’s judgment did not immediately result in an award of past-due benefits; where the court 18 has rendered a judgment favorable to a claimant by reversing an earlier determination by an ALJ 19 and remanding for further consideration, the court may calculate the 25-percent fee based upon 20 any past-due benefits awarded on remand. See, e.g., Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 21 2009) (en banc). 22 In considering a motion for attorney’s fees under § 406(b), the court must review counsel’s 23 request “as an independent check” to ensure that the contingency fee agreement “yield[s] 24 25 5 Notice of Award – ECF No. 36-3 at 2–3. 26 6 Order – ECF No. 35. 7 Fee Agreement – ECF No. 34-1 at 1. 27 8 Commissioner’s Response to Motion – ECF No. 37 at 7, 9–12. 1 || reasonable results.” See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). Section 406(b) “does 2 || not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs 3 courts to review for reasonableness fees yielded by those agreements.” Jd. at 808-09. To evaluate 4 the reasonableness of a fee request under § 406(b), the court considers the character of the 5 representation and the results achieved. Jd. at 808; see also Crawford, 586 F.3d at 1151. This 6 || includes analyzing whether substandard representation justifies awarding less than 25 percent in 7 fees; any delay in the proceedings attributable to the attorney requesting the fee; whether the 8 || benefits of the representation are out of proportion to time spent on the case; and the risk counsel 9 assumed by accepting the case. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 10 808). If an attorney “is responsible for delay. . . a reduction [of fees] is in order so that the attorney 11 will not profit from the accumulation of benefits during the pendency of the case in court.” 12 Gisbrecht, 535 U.S. at 808 (cleaned up); see also Crawford, 586 F.3d at 1151. 5 13 The court must offset an award of § 406(b) attorney’s fees by any award of fees granted under 14 the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec., 698 F.3d 1215, 1218 (9th 3 15 || Cir. 2012). a 16 The 25-percent contingency-fee agreement is within § 406(b)(1)(A)’s ceiling, and the amount 3 17 || is reasonable. Furthermore, the court finds that the reduction in plaintiffs counsel’s fee request by 18 || $500.00 (rounded up from $449.68) is appropriate. 19 20 CONCLUSION 21 The court finds that a fee award of $17,987.46 is reasonable under § 406(b). The plaintiff's 22 || counsel must refund the plaintiff the EAJA fees and the $500.00, which results in a net 23 (remaining) fee award of $13,537.66. 24 IT IS SO ORDERED. 25 Dated: October 8, 2020 Lit EC 26 LAUREL BEELER 27 United States Magistrate Judge 28