Reyes v. Commissioner of Social Security

Filing 25

ORDER GRANTING 22 Petitioner's Motion for Attorney Fees signed by Magistrate Judge Stanley A. Boone on 1/12/2021. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEON REYES,
Plaintiff,

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Case No. 1:17-cv-01065-SAB

v.
COMMISSIONER OF SOCIAL
SECURITY,

ORDER GRANTING PETITIONER’S MOTION
FOR ATTORNEY FEES PURSUANT TO 42
U.S.C. § 406(b)
(ECF Nos. 22, 23)

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Defendant.
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Petitioner Cyrus Safa (“Counsel”), attorney for Leon Reyes (“Plaintiff”), filed the instant

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motion for attorney fees on December 7, 2020.

Counsel requests fees in the amount of

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$15,000.00 pursuant to 42 U.S.C. § 406(b)(1). Plaintiff has not objected to the request. On

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December 22, 2020, Defendant Social Security Commissioner, as a de facto trustee for Plaintiff,

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filed a response to Petitioner’s motion providing an analysis of the fee request.

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I.

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BACKGROUND

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Plaintiff filed a complaint challenging the denial of social security benefits on August 8,

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2017. (ECF No. 1.) On May 16, 2018, a stipulation was filed to remand this action for further

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administrative proceedings. (ECF No. 17.) On May 17, 2018, an order was filed remanding this

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action and judgment was entered in favor of Plaintiff and against the Commissioner of Social
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Security. (ECF Nos. 18, 19.) On August 15, 2018, Plaintiff was awarded attorney fees of

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$2,775.00 at the stipulation of the parties. (ECF Nos. 20, 21.)

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On remand, the ALJ found that Plaintiff was disabled as of May 19, 2009, and past

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benefits were awarded in the amount of $94,402.60.1 (ECF Nos. 22-2 at 9; ECF No. 22-3 at 2.)

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The Commissioner withheld $23,600.65 from the past-due benefit for attorney fees. (ECF No.

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22-3 at 2.) This amount equals 25 percent of the retroactive benefit award. (Id.) In the instant

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motion, Petitioner seeks $15,000.00 for work performed in this action.2

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II.

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LEGAL STANDARD

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In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a

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judgment favorable to a claimant . . . who was represented before the court by an attorney,” the

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court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due

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benefits to which the claimant is entitled by reason of such judgment.” The payment of such

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award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A).

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The Supreme Court has explained that a district court reviews a petition for section 406(b)

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fees “as an independent check” to assure that the contingency fee agreements between the

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claimant and the attorney will “yield reasonable results in particular cases.”

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Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful

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attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test

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it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty-

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five percent maximum fee is not an automatic entitlement, and courts are required to ensure that

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the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (“§ 406(b) does not displace

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contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review

Gisbrecht v.

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The award letter does not state the amount of back benefits awarded, but does state that twenty
five percent, or $23,600.65, was withheld from the past due benefits. (ECF No. 22-3 at 2.) This
would make the total award $94,402.60 (4 x $23,600.65).

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The parties have consented to the jurisdiction of the magistrate judge and this matter has been
assigned to the undersigned for all purposes. (ECF Nos. 7, 8, 24.)
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for reasonableness fees yielded by those agreements”). Agreements seeking fees in excess of

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twenty-five percent of the past-due benefits awarded are not enforceable. Crawford, 586 F.3d at

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1148. The attorney has the burden of demonstrating that the fees requested are reasonable.

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Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148.

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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. Gisbrecht, 535 U.S. at 800. Ultimately,

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an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA.

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Gisbrecht, 535 U.S. at 796.

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The Ninth Circuit has identified several factors that a district court can examine under

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Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met

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his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the

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standard of performance of the attorney in representing the claimant; (2) whether the attorney

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exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of

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past-due benefits; and (3) whether the requested fees are excessively large in relation to the

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benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586

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F.3d at 1151.

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III.

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DISCUSSION

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The Court has conducted an independent check to insure the reasonableness of the

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requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement

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between Plaintiff and Petitioner provides for “a separate 25% of the past due benefits awarded

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upon reversal of any unfavorable ALJ decision for work before the court.. (Social Security

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Representation Agreement, ECF No. 22-1.) Plaintiff has been awarded benefits from March 2012

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through September 2020 in the amount of $94,402.60. (ECF No. 22-3 at 1, 3.3) In determining

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the reasonableness of the fees requested, the Court is to apply the test mandated by Gisbrecht.

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There is no indication that a reduction of fees is warranted for substandard performance.
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As discussed at footnote 1, the amount of the award was determined by multiplying the amount
withheld for attorney fees by four.
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Counsel is an experienced, competent attorney who secured a successful result for Plaintiff.

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Although this action does involve eight years of backpay, there is no indication that Counsel was

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responsible for any substantial delay in the court proceedings. Plaintiff agreed to a 25 percent fee

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at the outset of the representation and Petitioner is seeking payment of $15,000.00 which is

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approximately fifteen percent of the backpay award. The $15,000.00 fee is not excessively large

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in relation to the past-due award of $94,402.60.

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recognizes the contingent nature of this case and Counsel’s assumption of the risk of going

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uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003).

In making this determination, the Court

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In support of the motion, Petitioner submits a log of the time spent in prosecuting this

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action. (ECF No. 22-4.) The log demonstrates that Petitioner spent 12.3 hours and his paralegal

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spent 3.2 hours, for a total of 15.5 hours, on this action. (Id.) When considering the total amount

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requested by Petitioner, the fee request translates to $967.74 per hour for the services of petitioner

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and his paralegal in this action. In Crawford the appellate court found that a fee of $875 and $902

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per hour, for time of both attorneys and paralegals, was not excessive. Crawford, 486 F.3d at

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1152 (dissenting opinion).

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Further, since Gisbrecht, courts note that reducing a fee request is dicey business and find

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fee awards much higher than this to be reasonable. Williams v. Berryhill, No. EDCV 15-919-

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KK, 2018 WL 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an

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hourly rate of $1,553.36 per hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL

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3104502, at *3 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94 reasonable under the

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circumstances); Palos v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal.

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Sept. 20, 2016) (fees sought translate to $1,546.39 per hour for attorney and paralegal services);

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see also Villa v. Astrue, No. CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. Cal. Jan. 7,

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2010) (“In practice, the more efficient counsel is in court, the higher will be the hourly fee

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amount represented in a § 406 fee award.”)

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The Court finds that the requested fees are reasonable when compared to the amount of

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work Petitioner performed in representing Plaintiff in court. Petitioner’s representation of the

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claimant resulted in the action being remanded for further proceedings and ultimately benefits
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were awarded. Counsel also submitted a detailed billing statement which supports the request.

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(ECF No. 22-4.)

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The award of Section 406(b) fees is offset by any prior award of attorney fees granted

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under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, Petitioner has

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previously been awarded $2,775.00 in EAJA fees and the award of fees under Section 406(b)

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must be offset in that amount.

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VI.

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CONCLUSION AND ORDER

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For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to
Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that:

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1.

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Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the
amount of $15,000.00 is GRANTED;

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2.

Pursuant to counsel’s request, this amount shall be paid directly to Cyrus Safa.

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The Commissioner is to remit to Plaintiff the remainder of his withheld benefits;

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and

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3.

Petitioner is ordered to refund $2,775.00 of the Section 406(b) fees awarded to

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Plaintiff as an offset for EAJA fees previously awarded pursuant to 28 U.S.C. §

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2412(d).

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IT IS SO ORDERED.
Dated:

January 12, 2021
UNITED STATES MAGISTRATE JUDGE

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