Fontana v. Commissoner of Social Security

Filing 24

ORDER Regarding 23 Application for Attorney Fees signed by Magistrate Judge Dennis L. Beck on 1/26/2012. (Figueroa, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANK FONTANA,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE, Commissioner
of Social Security,

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Defendant.

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1:10cv0932 DLB

ORDER REGARDING APPLICATION
FOR ATTORNEY FEES
(Document 23)

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Petitioner Sengthiene Bosavanh (“Counsel”), attorney for Plaintiff Frank Fontana, filed

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the instant application for fees on December 7, 2011. Counsel requests fees in the amount of

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$30,445.05 pursuant to 42 U.S.C. § 406(b)(1).

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Defendant did not file an opposition.

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BACKGROUND
Plaintiff filed this action on May 17, 2010. On February 2, 2011, the Court granted the

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parties’ stipulation to remand the action for further proceedings. On July 21, 2011, the Court

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granted Plaintiff’s motion for attorney’s fees pursuant to the Equal Access to Justice Act

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(“EAJA”) in the amount of $3,168.59.1

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Throughout the application, Counsel indicates that the EAJA motion was granted in the amount of
$2,557.39. According to the July 21, 2011, order, however, fees were granted in the total amount of $3,168.59.
Plaintiff does not explain any reason for the discrepancy and the Court will therefore use the correct amount of
$3,168.59 in this analysis.

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On September 19, 2011, Administrative Law Judge Daniel G. Heely issued a decision
finding Plaintiff disabled since November 2, 2005. Exhibit 2, attached to Application.

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Pursuant to the ALJ’s decision, the Commissioner issued a Notice of Award on October

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12, 2011. Exhibit 3, attached to Application. The Notice indicates that Plaintiff is entitled to

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past-due monthly benefits beginning in May 2006. Unlike most Notice of Awards, however,

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neither the total amount of past-due benefits nor the amount withheld for attorney’s fees is set

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forth. Using the chart of the yearly benefit amounts, the past-due benefit is calculated to be

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$121,780.20.2
By this motion, Counsel seeks an award of $30,445.05 for 24.7 hours of attorney time.3

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This amount represents 25 percent of the past-due award. After crediting $3,168.59 received

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previously pursuant to the EAJA, Counsel requests a net fee of $27,276.46 from the past-due

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award.

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DISCUSSION

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42 U.S.C. § 406(b)(1)(A) provides in relevant part:

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Whenever a court renders a judgment favorable to a claimant under this subchapter who
was represented before the court by an attorney, the court may determine and allow as
part of its judgment a reasonable fee for such representation, not in excess of 25 percent
of the total of the past-due benefits to which the claimant is entitled by reason of such
judgment . . .

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In Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002), the Supreme Court explained that a

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district court reviews a petition for section 406(b) fees “as an independent check” to assure that

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contingency fee agreements between claimants and their attorneys will “yield reasonable results

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in particular cases.” The Court must respect “the primacy of lawful attorney-client fee

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agreements,” id. at 793, “looking first to the contingent-fee agreement, then testing it for

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reasonableness.” Id. at 808; see also Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009).

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Agreements are not enforceable to the extent that they provide for fees exceeding 25 percent of

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Counsel sets forth the exact calculations in her declaration, for a total of $121,780.20 in past-due benefits
awarded from May 2006 through September 2011. Declaration of Sengthiene Bosavanh, ¶ 4. The Court’s
calculations yield the same amount.
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Legal work was performed by attorneys Sengthiene Bosavanh and Ralph Wilborn.

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the past-due benefits. Gisbrecht, 535 U.S. at 807. “Within the 25 percent boundary. . . the

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attorney for the successful claimant must show that the fee sought is reasonable for the services

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rendered.” Id.

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In determining the reasonableness of an award, the district court should consider the

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character of the representation and the results achieved. Id. at 808. Ultimately, an award of

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section 406(b) fees is offset by an award of attorney’s fees granted under the EAJA. 28 U.S.C. §

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2412; Gisbrecht, 535 U.S. at 796.

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In Crawford v. Astrue, the Ninth Circuit recently suggested factors that a district court
should examine under Gisbrecht in determining whether the fee was reasonable. In determining

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whether counsel met their burden to demonstrate that their requested fees were reasonable, the

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Court noted that (1) no reduction in fees due to substandard performance was warranted, and the

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evidence suggested that counsels’ performance was nothing other than excellent; (2) no reduction

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in fees for dilatory conduct was warranted, as the attorneys in these cases caused no excessive

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delay which resulted in an undue accumulation of past-due benefits; and (3) the requested fees,

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which were significantly lower than the fees bargained for in the contingent-fee agreements, were

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not excessively large in relation to the benefits achieved and when taking into consideration the

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risk assumed in these cases. Crawford, 586 F.3d at 1151-1152.

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Here, there is no indication that a reduction of fees is warranted for substandard

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performance. Counsel is an experienced, competent attorney who secured an extremely

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favorable result for Plaintiff. There is no indication that Counsel engaged in any dilatory conduct

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resulting in excessive delay. Finally, Counsel requests an amount equal to the 25 percent

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contingent-fee that Plaintiff agreed to at the outset of the representation. Exhibit 1, attached to

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Application. The $30,445.05 fee ($27,276.46 net fee after subtracting the previously awarded

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EAJA fee) is not excessively large in relation to the past-due award of $121,780.20. In making

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this determination, the Court recognizes the contingent nature of this case and Counsel’s

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assumption of the risk of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037

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(N.D. Cal. 2003).

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Ms. Bosavanh and Mr. Wilborn submitted detailed billing statements in support of this
fee request. Exhibits 4 and 5, attached to Application.

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ORDER

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Based on the foregoing, Counsel’s section 406(b) Application is GRANTED in the

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amount of $30,445.05. This amount should be payable directly to Counsel. Upon payment,

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Counsel is directed to refund $3,168.59 to Plaintiff.

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IT IS SO ORDERED.
Dated:
3b142a

January 26, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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