Mary De Jesus Morales v. Michael J Astrue

Filing 40

ORDER RE: "COUNSEL'S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. 406(b)" by Magistrate Judge Charles F. Eick. On 12/9/14, counsel for Plaintiff filed "Counsel's Motion for Attorney Fees Pursuant to 42 U.S.C. 406(b)" . On 12/16/14, Defendant filed "Defendant's Non-Opposition Response, etc." Counsel for Plaintiff seeks attorney fees in the amount of $15,000. Section 406(b) fees are allowed in the gross amount of $15,000, to be paid out of the sums withheld by the Commissioner from Plaintiff's benefits. Counsel shall reimburse Plaintiff in the amount of $7,000, previously paid by the Government under the EAJA. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARY DE JESUS MORALES,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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___________________________________)

NO. CV 12-2189-E

ORDER RE: “COUNSEL’S MOTION
FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)”

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On December 9, 2014, counsel for Plaintiff filed “Counsel’s

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Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b)” (“the

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Motion”).

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Opposition Response, etc.”

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in the amount of $15,000.

On December 16, 2014, Defendant filed “Defendant’s NonCounsel for Plaintiff seeks attorney fees

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BACKGROUND

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The Court previously remanded this matter to the Commissioner for

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further administrative action pursuant to sentence six of 42 U.S.C.

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section 405(g).

The Commissioner subsequently awarded benefits to

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Plaintiff totaling $69,584.

From that award, the Administration has

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withheld 25 percent or $17,396, for a possible award of attorney fees

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under 42 U.S.C. section 406.

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accordance with stipulations filed by the parties, the Court entered

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Judgment for Plaintiff and awarded $7,000 in attorney fees and

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expenses under the Equal Access to Justice Act (“EAJA”).

Following the award of benefits, and in

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Throughout this matter, Plaintiff’s counsel has represented

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Plaintiff under a contingent fee agreement providing for fees in the

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amount of twenty-five percent of past-due benefits.

Twenty-five

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percent of the past due benefits awarded is $17,396 - a fee larger

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than the $15,000 counsel now is seeking under section 406(b).

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APPLICABLE LAW

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Section 406(b)(1) of Title 42 provides:

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Whenever a court renders a judgment favorable to a claimant

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. . . who was represented before the court by an attorney,

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the court may determine and allow as part of its judgment a

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reasonable fee for such representation, not in excess of

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25 percent of the total of the past-due benefits to which

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the claimant is entitled . . . In case of any such judgment,

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no other fee may be payable . . . for such representation

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except as provided in this paragraph.

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406(b)(1)(A).

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42 U.S.C. §

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According to the United States Supreme Court, section 406(b)

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does not displace contingent-fee agreements as the primary

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means by which fees are set for successfully representing

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Social Security benefits claimants in court.

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§ 406(b) calls for court review of such arrangements as an

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independent check, to assure that they yield reasonable

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results in particular cases.

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boundary line:

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that they provide for fees exceeding 25 percent of the past-

Rather,

Congress has provided one

Agreements are unenforceable to the extent

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due benefits.

Within this 25 percent boundary . . . the

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attorney for the successful claimant must show that the fee

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sought is reasonable for the services rendered.

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v. Barnhart, 535 U.S. 789, 807 (2002) (citations omitted)

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(“Gisbrecht”).

Gisbrecht

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The hours spent by counsel representing the claimant and

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counsel’s “normal hourly billing charge for noncontingent-fee cases”

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may aid “the court’s assessment of the reasonableness of the fee

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yielded by the fee agreement.”

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may reduce counsel’s recovery

Id. at 808.

The Court appropriately

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based on the character of the representation and the results

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the representative achieved.

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for delay, for example, a reduction is in order so that the

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attorney will not profit from the accumulation of benefits

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during the pendency of the case in court.

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are large in comparison to the amount of time counsel spent

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on the case, a downward adjustment is similarly in order.

If the attorney is responsible

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If the benefits

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Id. (citations omitted).

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DISCUSSION

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The fee sought does not exceed the agreed-upon twenty-five

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percent of past-due benefits.

Neither “the character of the

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representation” nor “the results the representative achieved” suggest

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the unreasonableness of the fee sought.

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responsible for any significant delay in securing Plaintiff’s

Plaintiff’s counsel was not

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benefits.

Because the present case is legally indistinguishable from

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Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009), this Court is

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unable to find that a comparison of the benefits secured and the time

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Plaintiff’s counsel spent on the matter suggest the unreasonableness

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of the fee sought.

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sought is reasonable for the services rendered,” within the meaning of

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Gisbrecht.

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gross amount of $15,000.

Therefore, the Court concludes that “the fee

Accordingly, the Court allows section 406(b) fees in the

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The only remaining issue concerns the extent to which Plaintiff’s

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counsel must now reimburse Plaintiff for the EAJA fee previously

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awarded.

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amount of $4,000.

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now reimburse Plaintiff in the full amount of $7,000.

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states that the $4,000 reimbursement number proposed by Plaintiff’s

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counsel “appears to be a mistake” (“Defendant’s Non-Opposition

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Response, etc.” at 3 n.2).

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Plaintiff’s counsel proposes to reimburse Plaintiff in the
Defendant submits that counsel for Plaintiff must

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Defendant

Under the “savings provision,”1/ “[w]hen an attorney receives

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fees under both section 406(b) and the EAJA ‘for the same work,’ the

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attorney must reimburse the claimant for the smaller of the two

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awards. . . .”

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2011) (“Chapa”) (citations omitted).

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the possibility that an attorney who receives a section 406(b) award

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following a sentence six remand might be able to prove that a lesser

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EAJA fee award should not be refunded to the claimant in its entirety.

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In Chapa, this Court accepted proof of the extent to which the EAJA

Chapa v. Astrue, 814 F. Supp. 2d 957, 960 (C.D. Cal.
In Chapa, this Court recognized

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fee there included a component (for post-sentence six remand work

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before the Administration) not constituting “the same work”

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comprehended by the section 406(b) award.

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Chapa, this Court construes counsel’s proposal for a $4,000

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reimbursement to Plaintiff not as a “mistake,” but as an attempt to

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take advantage of the Chapa holding.

Id. at 963-67.

In light of

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A subsequent Ninth Circuit decision casts some doubt on the

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continuing validity of the Chapa holding, however.

In Parrish v.

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Commissioner, 698 F.3d 1215, 1221 (9th Cir. 2012) (“Parrish”), the

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Ninth Circuit stated:

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We therefore hold that if a court awards attorney fees under

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§ 2412(d) [EAJA] for the representation of a Social Security

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claimant on an action for past-due benefits, and also awards

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attorney fees under § 406(b)(1) for representation of the

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same claimant in connection with the same claim, the

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1/

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Act of August 5, 1985, Pub. L. No. 99-80, § 3, 99 Stat. 183
(published in the Notes following 28 U.S.C. § 2412).
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claimant’s attorney ‘receives fees for the same work’ under

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both § 2412(d) and § 406(b)(1) for purposes of the EAJA

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savings provision.

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The Parrish case did not involve any section six remand and did

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not specifically discuss the Chapa holding.

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of the language in the Parrish decision calls into serious question

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whether a court in this circuit properly may deem any component of an

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EAJA fee award to have been other than “for the same work”

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Nevertheless, the breadth

comprehended by the section 406(b) award.

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In the present case, the Court need not and does not determine

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the effect of the Parrish decision on the continuing validity of the

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Chapa holding.

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after Parrish, counsel for Plaintiff has failed to present sufficient

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factual proof to bring the present case within the compass of the

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Chapa holding.

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did not provide any basis for determining the extent to which the

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$7,000 amount represented worked before the Administration as

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distinguished from work before the Court.

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counsel now purports to “allocate[] the total EAJA as $4,000 for the

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Court process and $3,000 to the agency process as a reasonable split”

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(Motion at 7).

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the declaration appended to the Motion does counsel adequately justify

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the “split” proposed.

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not itemized the time spent on work before the Administration, has not

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offered to assume that 100 percent of the time counsel spent before

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the Court was compensated in the EAJA award, and has not eschewed the

Assuming arguendo the Chapa holding remains valid

The stipulation that led to the $7,000 EAJA fee award

In the present Motion,

Neither in the Motion’s points and authorities nor in

Unlike in Chapa, Plaintiff’s counsel herein has

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intent to seek additional fees from the Administration under section

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406(a).

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Moreover, counsel apparently intends eventually to reimburse

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Plaintiff in the full $7,000 amount (Motion at 7, 10).

Counsel

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indicates, however, that the processing of the potentially duplicative

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fee petitions pending before the Administration “may take

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significantly longer than the court process takes” (id. at 7).

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practical matter, therefore, the issue presently before this Court

As a

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reduces itself to the issue of whether Plaintiff or Plaintiff’s

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counsel should bear the burden of any delay in determining the fee

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petitions pending before the Administration.

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Plaintiff’s counsel should bear this burden, in keeping with the

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underlying policy of the “savings provision” “to maximize the award of

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past-due benefits to claimants and to avoid giving double compensation

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to attorneys. . . .”

The Court believes that

Parrish, 698 F.3d at 1218.

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ORDER

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Section 406(b) fees are allowed in the gross amount of $15,000,

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to be paid out of the sums withheld by the Commissioner from

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Plaintiff’s benefits.

Counsel shall reimburse Plaintiff in the amount

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of $7,000, previously paid by the Government under the EAJA.

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IT IS SO ORDERED.

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DATED: January 22, 2015.

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_____________/S/________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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