Berry v. Colvin ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 GABRIEL BERRY, Case No.: 16cv1700-MMA (AGS) 11 ORDER GRANTING PLAINTIFF’S 12 Plaintiff, COUNSEL’S MOTION FOR v. ATTORNEYS’ FEES PURSUANT TO 13 42 U.S.C. § 406(b) ANDREW SAUL, Commissioner of 14 Social Security, [Doc. No. 36] 15 Defendant. 16 17 18 Young Cho, counsel for Gabriel Berry (“Plaintiff”), moves for an award of 19 attorneys’ fees pursuant to 42 U.S.C. § 406(b) in the amount of $20,400.00. See Doc. 20 No. 36-1.1 Andrew Saul, the Commissioner for Social Security, (“Defendant”) takes no 21 position on the reasonableness of counsel’s request. The Court found the matter suitable 22 for determination on the papers and without oral argument pursuant to Federal Rule of 23 Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 37. For the reasons set 24 forth below, the Court GRANTS Plaintiff’s counsel’s motion for attorneys’ fees. 25 BACKGROUND 26 27 1 All citations refer to the pagination assigned by the CM/ECF system. 28 1 On June 30, 2016, Plaintiff filed this social security appeal challenging the denial 2 of his application for disability benefits. See Doc. No. 1. The parties filed cross-motions 3 for summary judgment, and the assigned magistrate judge issued a well-reasoned Report 4 recommending that the Court grant Plaintiff’s motion. See Doc. Nos. 19, 22, 31. On 5 September 6, 2017, the Court adopted the Report and Recommendation in its entirety and 6 remanded the action to the Social Security Administration for further proceedings. See 7 Doc. No. 32. 8 On remand, the administrative law judge found Plaintiff disabled within the 9 meaning of the Social Security Act as of January 5, 2009. See Doc. No. 36-3 at 13, 14. 10 On August 21, 2019, the Social Security Administration issued a Notice of Award, which 11 acknowledged Plaintiff’s past-due benefits amounted to $81,987.42. See Doc. No. 36-4 12 at 3. Plaintiff’s counsel now moves for an award of $20,400.00 in attorneys’ fees for 13 representing Plaintiff in this action, with credit for the Equal Access to Justice Act 14 (“EAJA”) fees previously paid in the amount of $8,800.00, thus asking for certification of 15 the net fee of $11,600.00. See Doc. No. 36-1, at 2, 8. 16 LEGAL STANDARD2 17 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social 18 security] claimant who was represented by an attorney ‘may determine and allow as part 19 of its judgment a reasonable fee for such representation, not in excess of 25 percent of the 20 total of the past-due benefits to which the claimant is entitled by reason of such 21 judgment.’” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 22 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 23 claimant must show that the fee sought is reasonable for the services rendered.” 24 25 2 Plaintiff’s counsel brings this motion pursuant to 42 U.S.C. § 1383(d)(2)(B), which governs the 26 procedures surrounding fee awards. Doc. No. 36 at 1. In part, § 1383 provides that “[t]he provisions of section 406 of this title . . . shall apply to this part to the same extent as they apply in the case of 27 subchapter II of this chapter. . . .” 42 U.S.C. § 1383(d)(2)(A). Given this and the fact that counsel’s motion also relies upon § 406, the Court construes counsel’s motion as a request for § 406(b) fees. See 28 1 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).3 2 “[A] district court charged with determining a reasonable fee award under 3 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 4 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 5 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When 6 determining reasonableness of the fee award, courts must consider “whether the amount 7 need be reduced, not whether the loadstar amount should be enhanced.” Id. at 1149. 8 While there is not a definitive list of factors, courts should consider “the character of the 9 representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 10 “The court may properly reduce the fee for substandard performance, delay, or benefits 11 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 12 Finally, “an EAJA award offsets an award under Section 406(b), so that the 13 [amount of the total past-due benefits the claimant actually receives] will be increased by 14 the . . . EAJA award up to the point the claimant receives 100 percent of the past-due 15 benefits.” Gisbrecht, 535 U.S. at 796. 16 DISCUSSION 17 On March 26, 2013, Plaintiff and the Law Offices of Lawrence D. Rohlfing 18 entered into a Social Security Representation Agreement (“Agreement”). Doc. No. 36-2. 19 Pursuant to the Agreement, Plaintiff agreed to pay counsel a contingency-fee of up to 20 25% of past-due benefits awarded by the Commissioner. See Doc. No 36-1 at 9; see also 21 Doc. No. 36-2. The administrative proceedings became final in August 2019 when the 22 Social Security Administration issued its Notice of Award. See Doc. No. 36-4. 23 Plaintiff’s counsel seeks a total award of $20,400.00 in attorneys’ fees and “bases this fee 24 25 3 The lodestar calculation does not apply to the instant motion. See Gisbrecht, 535 U.S. at 802 26 (explaining that the lodestar method is applicable to “disputes over the amount of fees properly shifted to the loser in the litigation” whereas “Section 406(b) is of another genre: [i]t authorizes fees payable 27 from the successful party’s recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorneys’ fees, in contrast, are not shifted. They are paid from the award of past-due benefits and the amount of the fee, 28 1 on 25% of the net payable past due benefits.” Doc. No. 36-1 at 3. Counsel argues that 2 the amount sought in the instant motion “falls within the range of reasonable” 3 considering “counsel’s firm expended 50.65 combined hours before the District Court 4 from the two civil actions that were necessary to the eventual granting of benefits.” Id. at 5 2. Additionally, if granted by the Court, this award would then be further reduced by the 6 $8,800.00 that has already been received in attorneys’ fees under the EAJA. Id. 7 As an initial matter, the Court notes a seeming discrepancy in the gross and net 8 award sought. Counsel’s notice of motion states that the gross fee is $21,900.00. Doc. 9 No. 36 at 1. However, counsel’s memorandum of points and authorities provides that the 10 amount sought is $20,400.00. Doc. No. 36-1 at 2, 3, 4, 5, 6, 8. Counsel states that he 11 seeks “a fee of $20,400.00 representing 25% of past due benefits.” Id. at 6. Counsel 12 represented Plaintiff “on a contingency fee basis of 25%.” Id. at 9; see also Doc. No. 36- 13 2 at 1. A fee award of $21,900.00 would exceed 25% in light of the $81,987.42 in past 14 due benefits. Accordingly, the Court finds counsel’s motion as one seeking attorneys’ 15 fees for $20,400.00. 16 Relatedly, counsel claims the net fee—after accounting for the $8,800.00 17 previously paid—is $13,100.00 in his notice of motion and three times in the 18 memorandum of points and authorities. Doc. No. 36 at 2; Doc. No. 36-1 at 6, 7. 19 However, counsel’s memorandum of points and authorities also claims twice that the net 20 fee is $11,600.00. Doc. No. 36-1 at 2, 8. Given the discussion regarding the gross fee, 21 supra, the Court finds the intended net fee sought is $11,600.00. 22 Upon careful review of the documents submitted, and the applicable law, the Court 23 finds that counsel’s fee request is reasonable. Plaintiff’s counsel expended 50.65 hours 24 on this case. Doc. No. 36-1 at 2; Doc. No 36-5 at 2, 4. The de facto hourly rate is 25 $402.76, which falls on the low end of the range that has been approved by courts in 26 similar cases, including this Court.4 See Crawford, 586 F.3d at 1153 (approving de facto 27 28 1 hourly rates of $519, $875, and $902 in 2009); Martinez v. Berryhill, No. 13-cv-272-JLS 2 (JLB), 2017 WL 4700078, at *3 (S.D. Cal. Oct. 19, 2017) (approving de facto hourly rate 3 of $886.52 and noting that “[w]hile such an hourly rate is on the higher end charged for 4 social security appeals, the Court nonetheless concludes that the fee is reasonable in the 5 present case.”); Richardson v. Colvin, No. 15-cv-1456-MMA (BLM), 2017 WL 1683062, 6 at *2 (S.D. Cal. May 2, 2017) (approving de facto hourly rate of $770); Nash v. Colvin, 7 No. 12-cv-2781-GPC (RBB), 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) 8 (approving de facto hourly rate of $656); Sproul v. Astrue, No. 11-cv-1000-IEG (DHB), 9 2013 WL 394053, at *2 (S.D. Cal. Jan. 30 2013) (approving de facto hourly rate of 10 $800). Plaintiff’s counsel has also submitted a billing statement detailing the work 11 performed to litigate this case in federal court. See Doc. No. 36-5. Moreover, “[c]ounsel 12 assumed the risk of nonpayment inherent in a contingency agreement,” and the requested 13 fee award of $20,400.00 does not exceed the 25% “statutory cap[.]” Moreno v. Berryhill, 14 No. 13-cv-8492-PLA, 2018 WL 3490777, at *3 (C.D. Cal. July 19, 2018). 15 Finally, there is nothing in the record to suggest substandard performance by 16 counsel, delay, or a disproportionate amount of time spent on this case relevant to the 17 benefits at stake. As a result of counsel’s work, Plaintiff received a highly favorable 18 decision and a significant award of past-due benefits. Thus, none of the factors outlined 19 in Gisbrecht favor reducing the fee award, and the Court concludes that counsel’s request 20 for attorneys’ fees is reasonable. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 Based on the foregoing, the Court GRANTS Plaintiffs counsel’s motion for 3 || attorneys’ fees and APPROVES an award in the amount of $20,400.00 to the Law 4 || Offices of Lawrence D. Rohlfing, offset by $8,800.00 in EAJA fees previously received, 5 resulting in $11,600.00 payable to the Law Offices of Lawrence D. Rohlfing. 6 IT IS SO ORDERED. 7 8 || Dated: November 27, 2019 Mile UL hiplle 10 Hon. Michael M. Anello United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28