Julie Driskell v. Carolyn W. Colvin
Filing
28
ORDER by Magistrate Judge Kenly Kiya Kato: granting 24 MOTION for Attorney Fees. Fees awarded in favor of Julie Driskell against Carolyn W. Colvin in the amount of $32,400.75 with a reimbursement to Plaintiff for EAJA fees previously awarded in the amount of $3,700. (dts)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
CENTRAL DISTRICT OF CALIFORNIA
8
9
10
Case No. EDCV 16-2534 -KK
JULIE D., 1
11
Plaintiff,
12
ORDER GRANTING MOTION FOR
ATTORNEY FEES PURSUANT TO 42
U.S.C. § 406(B)
v.
13
ANDREW SAUL,2 Commissioner of
Social Security,
14
15
Defendant.
16
17
18
I.
19
INTRODUCTION
20
Plaintiff Julie D. (“Plaintiff”)’s counsel, Michelle Shvarts of Disability
21
Advocates Group (“Counsel”), filed a Motion (“Motion”) for Authorization of
22
Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”). The Motion seeks
23
an award of $32,400.75 for representing Plaintiff in an action to obtain disability
24
insurance benefits, with a refund to Plaintiff of $3,700 for the Equal Access to Justice
25
26
27
28
Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B)
and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
2 The Court substitutes Andrew Saul, the current Commissioner of Social Security, as
Defendant in this action. Fed. R. Civ. P. 25(d).
1
1
Act (“EAJA”) fees previously awarded. The parties have consented to the jurisdiction
2
of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).
3
For the reasons stated below, the Court GRANTS the Motion.
4
II.
5
RELEVANT BACKGROUND
6
On December 8, 2016, Plaintiff filed the Complaint in this action. ECF
7
Docket No. (“Dkt.”) 1, Compl. Plaintiff alleged the Commissioner of the Social
8
Security Administration (“Defendant”) improperly denied Plaintiff’s application for
9
Title II Disability Insurance Benefits (“DIB”). Id. On August 31, 2017, the Court
10
entered Judgment reversing and remanding the case for further administrative
11
proceedings. Dkt. 20, Order; Dkt. 21, Judgment.
12
On September 25, 2017, the Court issued an order approving the parties’
13
stipulation awarding EAJA fees to Counsel in the amount of $3,700. Dkt. 23, Order
14
Approving EAJA Fees.
15
On April 22, 2020, Counsel filed the instant Motion for Authorization of
16
Attorney’s Fees Pursuant to Section 406(b) seeking attorney’s fees in the amount of
17
$32,400.75 with a refund to Plaintiff in the amount of $3,700 for EAJA fees
18
previously received. Dkt. 24, Mot. Counsel states 21.7 hours of attorney and
19
paralegal time were spent representing Plaintiff in federal court. Dkt. 27, Declaration
20
of Michelle Shvarts In Support Of Motion For Authorization Of Attorney’s Fees
21
Pursuant To 42 U.S.C. § 406(b) (“Shvarts Suppl. Decl.”), ¶ 5; Exh. D, Itemized
22
Hours. Counsel seeks compensation pursuant to a contingency agreement dated
23
November 29, 2016, which provides for a fee of twenty-five (25) percent of past due
24
benefits awarded to Plaintiff and/or any auxiliary beneficiaries. Id., ¶ 4; Exh. C,
25
Attorney-Client Retainer Agreement.
26
On April 21, 2020, Counsel served Plaintiff with the Motion and informed her
27
she had a right to file a response to the Motion. Id., ¶ 4; Exh. A, Letter. Plaintiff has
28
not filed a response.
2
1
On May 4, 2020, Defendant filed a Response to the Motion. Dkt. 25. In the
2
Response, Defendant “takes no position on the reasonableness of the request”. Id. at
3
2.
4
On May 19, 2020, the Court issued an Order requiring Counsel to submit a
5
declaration that complies with 28 U.S.C. § 1746 in support of the Motion. Dkt. 26.
6
On May 21, 2020, in accordance with the Court’s order, Counsel submitted a
7
sworn declaration in support of the Motion. Dkt. 27, Shvarts Suppl. Decl.
8
Thus, the Court deems this matter submitted.
9
III.
10
DISCUSSION
11
A.
APPLICABLE LAW
12
Pursuant to Section 406(b):
13
Whenever a court renders a judgment favorable to a claimant under this
14
subchapter who was represented before the court by an attorney, the
15
court may determine and allow as part of its judgment a reasonable fee
16
for such representation, not in excess of 25 percent of the total of the
17
past-due benefits to which the claimant is entitled by reason of such
18
judgment, and the Commissioner of Social Security may . . . certify the
19
amount of such fee for payment to such attorney out of, and not in
20
addition to, the amount of such past-due benefits.
21
42 U.S.C. § 406(b)(1)(A). Thus, “a prevailing [disability] claimant’s [attorney’s] fees
22
are payable only out of the benefits recovered; in amount, such fees may not exceed
23
25 percent of past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 792, 122 S. Ct.
24
1817, 152 L. Ed. 2d 996 (2002).
25
Where a claimant entered into a contingent fee agreement with counsel, a court
26
must apply Section 406(b) “to control, not to displace, fee agreements between Social
27
Security benefits claimants and their counsel.” Id. at 793. A court should not use a
28
“lodestar method,” under which a district court “determines a reasonable fee by
3
1
multiplying the reasonable hourly rate by the number of hours reasonably expended
2
on the case.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc).
3
Rather, where the claimant and counsel entered into a lawful contingent fee
4
agreement, courts that use the “lodestar” method as the starting point to determine
5
the reasonableness of fees requested under Section 406(b) improperly “reject the
6
primacy of lawful attorney-client fee agreements.” Gisbrecht, 535 U.S. at 793. Thus,
7
courts should not apply lodestar rules in cases where the claimant and counsel reached
8
a contingent fee agreement because:
9
[t]he lodestar method under-compensates attorneys for the risk they
10
assume in representing [social security] claimants and ordinarily produces
11
remarkably smaller fees than would be produced by starting with the
12
contingent-fee agreement. A district court’s use of the lodestar to
13
determine a reasonable fee thus ultimately works to the disadvantage of
14
[social security] claimants who need counsel to recover any past-due
15
benefits at all.
16
Crawford, 586 F.3d at 1149.
17
However, even in contingency fee cases, a court has “an affirmative duty to
18
assure that the reasonableness of the fee [asserted by counsel] is established.” Id. The
19
court must examine “whether the amount need be reduced, not whether the lodestar
20
amount should be enhanced.” Id. The court may consider factors such as the
21
character of the representation, the results achieved, the ratio between the amount of
22
any benefits awarded and the time expended, and any undue delay attributable to
23
counsel that caused an accumulation of back benefits in determining whether a lawful
24
contingent fee agreement is reasonable. See Gisbrecht, 535 U.S. at 808; Crawford,
25
586 F.3d at 1151.
26
Additionally, the Court must determine whether a previously awarded EAJA
27
fee should be refunded to Plaintiff in the event both Section 406(b) and EAJA fees
28
are awarded. “Congress harmonized fees payable by the [Agency] under EAJA with
4
1
fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in
2
this manner: Fee awards may be made under both prescriptions, but the claimant’s
3
attorney must ‘refun[d] to the claimant the amount of the smaller fee.’” Gisbrecht,
4
535 U.S. at 796.
5
B.
6
ANALYSIS
Here, Counsel seeks a reasonable fee under Section 406(b). Plaintiff retained
7
Counsel to represent her in federal court in her appeal from the administrative denial
8
of benefits and agreed to pay Counsel a contingent fee of twenty-five percent of any
9
past due benefits and benefits awarded to an auxiliary beneficiary. See Shvarts Suppl.
10
Decl., Exh. C, Attorney-Client Retainer Agreement. Consideration of the factors set
11
forth in Gisbrecht and Crawford warrants no reduction of the fee Counsel seeks.
12
The record discloses no issue regarding the quality or efficiency of Counsel’s
13
representation before this Court, or any misconduct or delay by Counsel. Counsel
14
obtained a favorable outcome for Plaintiff, ultimately resulting in a remand for further
15
administrative proceedings and an award of past due and auxiliary benefits. See Dkt.
16
21, Judgment; Shvarts Suppl. Decl., Exh. B, Award Letter. Further, the time
17
expended to litigate this case, i.e. 21.7 hours, was reasonable and within the approved
18
range for social security disability cases. See Patterson v. Apfel, 99 F. Supp. 2d 1212,
19
1214 & n.2 (C.D. Cal. 2000) (noting that “a survey of several dozen cases in which
20
attorney’s fees were awarded in social security cases suggests that the 33.75 hours
21
spent by plaintiff’s counsel falls within the approved range”).
22
In addition, a fee of $32,400.75 based on 21.7 hours of attorney time is
23
reasonable. See Shvarts Suppl. Decl., Exh. D, Itemized Hours. The Court finds
24
Counsel’s effective hourly rate of approximately $1,493.123 reasonable under the
25
circumstances. See Villa v. Astrue, No. CIV S-06-0846 GGH, 2010 WL 118454, at
26
*1-2 (E.D. Cal. Jan. 7, 2010) (approving Section 406(b) fees exceeding $1,000.00 per
27
28
3
The Court’s calculation is achieved by dividing $32,400.75 by 21.7 hours of time.
5
1
hour, and noting “[r]educing [Section] 406(b) fees after Crawford is a dicey business”).
2
Further, post-Gisbrecht decisions have approved contingency fee agreements yielding
3
similar hourly rates to the rate Counsel seeks. See, e.g., Daniel v. Astrue, No. EDCV
4
04-01188-MAN, 2009 WL 1941632, at *2-3 (C.D. Cal. July 2, 2009) (approving fees
5
amounting to $1,491.25 per hour); see also Palos v. Colvin, No. CV 15-04261-DTB,
6
2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (finding “an hourly rate of
7
$1,546.39 for attorney and paralegal services” is reasonable). Hence, in light of the
8
hours Counsel expended, the Section 406(b) fee award amount Counsel requests
9
would not represent an unfair windfall to Counsel.
10
Additionally, nothing in the record suggests any overreaching in the making of
11
the fee agreement or any impropriety on the part of Counsel in representing Plaintiff.
12
Counsel assumed the risk of nonpayment inherent in a contingency agreement and
13
Counsel’s efforts proved successful for Plaintiff. Accordingly, the Court finds the
14
Section 406(b) fees Counsel requests reasonable.
15
IV.
16
ORDER
17
Based on the foregoing, IT IS HEREBY ORDERED (1) Counsel’s Motion
18
for Attorney Fees Pursuant to Section 406(b) is GRANTED; (2) Defendant is
19
directed to pay Counsel the sum of $32,400.75 with a reimbursement to Plaintiff for
20
EAJA fees previously awarded in the amount of $3,700.
21
22
23
24
Dated: May 22, 2020
HONORABLE KENLY KIYA KATO
United States Magistrate Judge
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?