Anglen v. Commissioner of Social Security

Filing 25

ORDER GRANTING 23 Motion for Attorney's Fees; ORDER SEALING Docket Numbers 23 -1, 23 -2 and Requiring Counsel to Re-File Such Documents With Proper Redaction, signed by Magistrate Judge Erica P. Grosjean on 9/29/2020. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELIZABETH ANNE ANGLEN,

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Plaintiff,

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No. 1:17-cv-00461-EPG
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES

v.
(ECF No. 23)
ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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ORDER SEALING DOCKET NUMBERS 231, 23-2 AND REQUIRING COUNSEL TO REFILE SUCH DOCUMENTS WITH PROPER
REDACTION

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Cyrus Safa of the Law Offices of Lawrence D. Rohlfing, attorney for Elizabeth Anne

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Anglen (“Plaintiff”), filed a Motion for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) on

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August 26, 2020. (ECF No. 23). Plaintiff and the Commissioner of Social Security (“Defendant”

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or “Commissioner”) were served with the motion. (ECF No. 23 at 15-17). Plaintiff has not filed

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any opposition to the motion. Defendant filed a response to the motion on August 27, 2020, and

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indicated that it has no opposition to the motion. (ECF No. 24).
For the reasons set forth below, the motion for attorney’s fees is granted. In addition, as

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set forth below, the Court seals certain documents that contain Plaintiff’s full Social-Security

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number and requires Plaintiff’s counsel to re-file such documents with the proper redaction.

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I.

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BACKGROUND
On March 30, 2017, Plaintiff commenced this action for judicial review of a final denial

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of an application for disability benefits under the Social Security Act by the Commissioner of the

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Social Security Administration. (ECF No. 1.) On February 6, 2018, the parties filed a stipulation

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for voluntary remand pursuant to sentence four of 42 U.S.C. § 405(g) and for entry of judgment,

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and on February 7, 2017, the Court entered an order and judgment pursuant to such stipulation.

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(ECF Nos. 19-21). On July 27, 2020, Plaintiff was awarded past-due benefits in the amount of

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$39,870 (ECF No. 23-3 at 3) (showing withholding of $9,967.50, representing 25% of past-due

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benefits).
Plaintiff’s counsel now moves for attorney’s fees in the amount of $2,400.00 pursuant to

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42 U.S.C. § 406(b). (ECF No. 23 at 5). Counsel states that Plaintiff would receive a fee of 25% of

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the past due benefits awarded upon reversal by the Court of the Commissioner’s decision. Id.

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Counsel contends that the fees are reasonable as he has expended 37.4 hours of work on this

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matter. Id. Counsel further contends that he did not receive any EAJA fees in this case because

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they were diverted towards payment of a debt by the U.S. Treasury Offset Program. Id. at 7.

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II.

DISCUSSION
Motion for Attorney’s Fees

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A.

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Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in

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which they have successfully represented social security claimants. Section 406(b) provides the

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following 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, and the Commissioner
of Social Security may . . . certify the amount of such fee for payment to such
attorney out of, and not in addition to, the amount of such past-due benefits.

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42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting

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provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits

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awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142,
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1147 (9th Cir.2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. at 789, 802 (2002)).

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However, the Commissioner has standing to challenge the award, despite the fact that the Section

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406(b) attorney's fee award is not paid by the government. Craig v. Sec ‘y Dep't of Health &

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Human Servs., 864 F.2d 324, 328 (4th Cir.1989), abrogated on other grounds in Gisbrecht, 535

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U.S. at 807. The goal of fee awards under Section 406(b) is to provide adequate incentive to

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represent claimants while ensuring that the usually meager disability benefits received are not

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greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir.1989), abrogated on other grounds

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in Gisbrecht, 535 U.S. at 807.

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The twenty-five percent (25%) maximum fee is not an automatic entitlement, and courts

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are required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (Section

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406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, Section

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406(b) instructs courts to review for reasonableness fees yielded by those agreements). “Within

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the 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought

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is reasonable for the services rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding

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that Section 406(b) “does not specify how courts should determine whether a requested fee is

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reasonable” but “provides only that the fee must not exceed 25% of the past-due benefits

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awarded”).

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Generally, “a district court charged with determining a reasonable fee award under §

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406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’. . . ‘looking

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first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at

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1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified

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several factors that may be considered in determining whether a fee award under a contingent-fee

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agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the

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representation; (2) the results achieved by the representative; (3) whether the attorney engaged in

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dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the

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benefits are large in comparison to the amount of time counsel spent on the case; and (5) the

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attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent

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cases. Id. (citing Gisbrecht, 535 U.S. at 807–08).
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Here, Plaintiff entered into a fee agreement that provides for attorney’s fees in the amount

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of 25% of the past-due benefits. (ECF No. 23-1). The Court has considered counsel’s

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representation of Plaintiff and the results achieved by counsel. Plaintiff’s counsel indicates he

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expended a total of 10.6 hours counsel time and 3 hours of a paralegal’s time litigating Plaintiff's

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case and he is seeking 6.4% of the total amount of past-due benefits. (ECF No. 23 at 9-10; 23-4

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at 1-2). This represents a combined hourly rate of $176.47, which, according to counsel’s

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declaration, is within the prevailing market rate. (ECF Nos. 23 at 16; 23-6 at 4-5, 7.) Further,

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there is no indication that a reduction of the award is warranted due to any substandard

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performance by counsel in this matter. Counsel is an experienced attorney who secured a

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successful result for Plaintiff. There is also no evidence that counsel engaged in any dilatory

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conduct resulting in excessive delay. Thus, the requested fee amount is not excessive in relation

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to the past-due award. See generally, Shepard v. The Comm’n of Social Security, No. 1:14-cv-

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1166 SMS, 2016 WL 3549261 (E.D. Cal. June 29, 2016) (granting $17,125.00 pursuant to

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Section 406(b)); Schneider v. The Comm’n of Soc. Sec., No. 14-cv-00034 SKO, 2016 WL

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2654228 (E.D. Cal., May 10, 2016) (granting $10,253.96); Whiteside v. The Comm’n of Soc. Sec.,

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No. 1:13-cv-1337-BAM, 2015 WL 36545054 (E.D. Cal., June 11, 2015) (granting $6,000.00). In

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making this determination, the Court recognizes the contingent-fee nature of this case and

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counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. See Hearn v.

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Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal.2003) (“Because attorneys [] contend with a

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substantial risk of loss in Title II cases, an effective hourly rate of only $450 in successful cases

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does not provide a basis for this court to lower the fee to avoid a windfall.”).

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Plaintiff’s counsel has not moved for EAJA fees and indicates he will not. (ECF No. 23 at
16). Thus, no offset is required.

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B.

Sealing and Re-Filing Certain Papers

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Under Federal Rule of Civil Procedure 5.2 and Local Rule 140, only the last four digits of

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a Social-Security number may be visible in filings. Fed. R. Civ. P. 5.2(a) (“Unless the court

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orders otherwise, in an electronic or paper filing with the court that contains an individual’s

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social-security number . . . the filing may include only: (1) the last four digits of the social4

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security number . . .”); Local Rule 140(a) (“[W]hen filing documents, counsel . . . shall omit or,

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where reference is necessary partially redact . . . (iii) Social Security numbers: Use only the last

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four numbers . . . .”). Plaintiff’s full Social-Security number is visible in two documents. (See

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ECF No. 23-1 at 1; 23-2 at 4, 6). As such, the Court will seal those documents and Plaintiff’s

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counsel shall re-file such sealed documents in compliance with Federal Rule of Civil Procedure

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5.2(a) and Local Rule 140(a).

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III.

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CONCLUSION AND ORDER
For the reasons stated above, the fees sought by Cyrus Safa pursuant to Section 406(b) are

reasonable. Accordingly, IT IS HEREBY ORDERED that:
1. The Motion for Attorney’s Fees pursuant to Section 406(b) in the amount of
$2,400.00, (ECF No. 23), is GRANTED;

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2. The Clerk of the Court is directed to serve this order on Elizabeth Anne Anglen at 633
S Twin Oaks Valley Road, Apt. 291, San Marcos, CA 92078;

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3. The Clerk of Court is directed to SEAL ECF Nos. 23-1 and 23-2; and

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4. Within seven days of the date of this Order, Plaintiff shall re-file such sealed

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documents, and such filings shall comply with Federal Rule of Civil Procedure 5.2(a)

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and Local Rule 140(a).

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IT IS SO ORDERED.
Dated:

September 29, 2020

/s/
UNITED STATES MAGISTRATE JUDGE

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