(SS) Flood v. Commissioner of Social Security

Filing 33

ORDER GRANTING 28 Counsel's Motion for Attorney's Fees; ORDER Directing the Clerk of Court to Mail a Copy of This Order to Plaintiff signed by District Judge Jennifer L. Thurston on 9/24/2024. (Lawrence, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY LEN FLOOD,

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Plaintiff,

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Case No. 1:21-cv-0017 JLT HBK
ORDER GRANTING COUNSEL’S MOTION
FOR ATTORNEY'S FEES

v.

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MARTIN O’MALLEY,
Commissioner of Social Security1,

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Defendant.

(Doc. 28)
ORDER DIRECTING THE CLERK OF
COURT TO MAIL A COPY OF THIS
ORDER TO PLAINTIFF

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Jonathan O. Peña of Peña & Bromberg, PC, counsel for Rodney Len Flood, seeks an

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award of attorney’s fees pursuant to 42 U.S.C. § 406(b). (Doc. 28.) Neither Plaintiff nor the

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Commissioner of Social Security opposed the motion. For the reasons set forth below, the

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motion for attorney’s fees is GRANTED in the amount of $19,400.00, subject to an offset of

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$6,489.80 in fees previously awarded under the Equal Access to Justice Act.

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I.

Relevant Background
Plaintiff entered into a “Fee Agreement [re:] Court SSI/ Social Security Disability” with

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Counsel on June 23, 2020. (Doc. 28-2 at 1-2.) In the agreement, Plaintiff indicated that if he was

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awarded any past-due / retroactive benefits, he would pay 25% of the amount awarded to

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Counsel. (Id. at 1.) Pursuant to the terms, Plaintiff agreed: “[M]y attorney has the right under

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Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, the Court substitutes Martin O’Malley as the defendant in this action.
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this contract to ask the court to award as much as 25% of my past-due benefits for representing

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me in court. If the court awards an attorney fee out of my past-due benefits and also awards an

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EAJA fee for that same work, my attorney must refund to me the smaller fee.” (Id.) In addition,

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Plaintiff acknowledged the Social Security Administration would hold 25% of any past-due

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benefits for the payment. (Id.)

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On January 6, 2021, Plaintiff initiated this action seeking judicial review of an

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administrative decision denying his claim for disability insurance benefits and supplemental

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security income benefits under the Social Security Act. (Doc. 1.) On April 25, 2022, the Court

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granted the parties’ stipulation to a voluntary remand pursuant to sentence four of 42 U.S.C. §

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405(g). (Docs. 23, 24.) Following the entry of judgment in favor of Plaintiff, the Court awarded

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$6,489.80 in attorney fees under the Equal Access to Justice Act. (Docs. 25, 27.)

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Upon remand, the Commissioner found Plaintiff disabled beginning on July 11, 2013.

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(Doc. 28-1 at 2.) Plaintiff was awarded $169,477.00 in retroactive benefits,2 from which the

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Administration withheld $42,389.25 for attorney’s fees. (Id. at 3; Doc. 28 at 3.)
On October 13, 2023, Counsel filed this motion for attorney’s fees in the amount of

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$19,400.00, with an offset for EAJA fees already awarded. (Doc. 28.) Counsel served Plaintiff

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with the motion by U.S. mail and notified him that any opposition was due within 14 days. (Id. at

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1, 9.) To date, Plaintiff has not filed an opposition, or otherwise responded to the motion for fees.

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The Commissioner “neither supports nor opposes counsel’s request….” (Doc. 30 at 1.)

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II.

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Attorneys may seek a reasonable fee under the Social Security Act for cases in which they
have successfully represented social security claimants. Section 406(b) allows:
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 …

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Attorney Fees under § 406(b)

42 U.S.C. § 406(b)(1)(A). Counsel for a plaintiff may recover attorneys’ fees under both 42

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Plaintiff indicates this amount was calculated by multiplying the 25% of past due benefits amount by four
($42,369.25 x 4). (See Doc. 28 at 3; Doc. 28-1 at 3.)

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U.S.C. § 406(b) and the EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). However,

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counsel must refund to the plaintiff the amount of the smaller fee. Id.
Fees in Social Security cases “are usually set in contingency-fee agreements and are

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payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App’x 69,

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70 (9th Cir. 2020); see also Crawford v. Astrue, 586. F.3d 1142, 1155 (9th Cir. 2009) (observing

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that “virtually all attorneys charge a contingency fee” in Social Security cases). District courts

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“have been deferential to the terms of contingency fee contracts § 406(b) cases.” Hern v.

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Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). Nevertheless, the Court must review

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contingent-fee arrangements “as an independent check, to assure that they yield reasonable results

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in particular cases.” Gisbrecht, 535 U.S. at 807.
When evaluating the reasonableness of a fee request, the Court should consider “the

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character of the representation and the results the representative achieved.” Gisbrecht, 535 U.S.

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at 808. The Court should also consider whether the attorney performed in a substandard manner

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or engaged in dilatory conduct or excessive delays, and whether the fees are “excessively large in

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relation to the benefits received.” Crawford, 586 F.3d at 1149. Importantly, a contingency fee

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agreement is unenforceable if it provides for fees exceeding the statutory amount of 25 percent.

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Gisbrecht, 535 U.S. at 807 (“Congress has provided one boundary line: Agreements are

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unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due

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benefits.”); see also Crawford, 586. F.3d at 1155 (“42 U.S.C. § 406(b) sets the maximum

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percentage that may be charged for representing a claimant in district court at 25 percent of past

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benefits recovered). The burden is upon counsel to show the fees requested are reasonable.

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Gisbrecht, 535 U.S. at 807.

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III.

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Analysis
Plaintiff signed a contingent fee agreement providing “my attorney shall charge and

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receive as the fee an amount equal to twenty-five percent (25%) of the past-due benefits that are

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awarded to my family and me in the event my case is won.” (Doc. 28-2 at 1.) Counsel accepted

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the risk of loss in the action and expended a total of 29.9 hours while representing Plaintiff before

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the District Court. (Doc. 28-3 at 1.) Tasks undertaken included reviewing the administrative
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record, summarizing the medical evidence, legal research, and preparation of the opening brief.

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(See id.) The time Counsel spent representing Plaintiff was reasonable for the tasks completed

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and does not appear inflated.

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Counsel was ultimately successful in securing $169,477.00 in retroactive benefits for

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Plaintiff. (Doc. 28-1 at 3.) For this work, Counsel requests a fee of $19,400.00, which is

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approximately 12% of the past-due benefits withheld for fees. (See Doc. 28 at 3.) Because

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$6,489.80 was previously approved under the EAJA and Counsel will refund this amount, the net

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cost to Plaintiff is $12,910.20. (See Doc. 28 at 6.)

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There is no indication that Counsel performed in a substandard manner or engaged in

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severe dilatory conduct. Plaintiff secured a remand for payment of benefits following the appeal,

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including an award of past-due benefits beginning June 2016. (Doc. 28-1 at 1.) The fees

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requested are significantly below the 25% maximum permitted under 42 U.S.C. §406(b), and the

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amount agreed upon by counsel and Plaintiff. (See Doc. 28-2 at 1.) Plaintiff did not oppose

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Counsel’s request and thereby indicates an implicit belief that the total amount requested for

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attorney fees is reasonable.
Counsel’s request for $19,400 in fees for 29.9 hours results in an hourly rate of $648.92

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for the work completed in this action. (Doc. 28 at 5.) The Ninth Circuit found similar hourly

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rates were reasonable in Social Security contingency fee arrangements. Crawford, 586 F.3d at

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1153 (explaining that the majority opinion found reasonable effective hourly rates equaling

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$519.00, $875.00, and $902.00). Recently, this Court also approved a comparable hourly rate for

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work completed before the district court in a Social Security appeal. See Garcia v. O’Malley,

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2024 WL 4121872, at *3 (E.D. Cal. Sept. 9, 2024) (approving an hourly rate of $685.71 for

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counsel upon reviewing a request for fees under Section 406(b)). Because the hourly rate falls

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within the range of fees found reasonable by the Ninth Circuit and this Court, the rate does not

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weigh against granting the fees requested.

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IV.

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Conclusion and Order
Based upon the tasks completed and results achieved following the remand for further

proceedings, the Court finds the fees sought by Counsel are reasonable. Gisbrecht, 535 U.S. at
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807-08. However, an award of Section 406(b) fees must be offset by any prior award of

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attorneys’ fees granted under the EAJA. 28 U.S.C. § 2412(d); Gisbrecht, 535 U.S. 796. Because

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Plaintiff was previously awarded $6,489.80 in fees pursuant to the EAJA, Counsel shall refund

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this amount to Plaintiff. Accordingly, the Court ORDERS:

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The motion for an award of attorney’s fees (Doc. 28) is GRANTED.

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2.

Plaintiff’s Counsel is AWARDED $19,400.00 in attorney fees pursuant to 42

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U.S.C. § 406(b).
3.

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Security Administration.
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After payment of fees, any remaining funds being held by the Administration
SHALL be released to Plaintiff Rodney Len Flood.

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The funds SHALL be paid to Counsel out of the funds withheld by the Social

Plaintiff’s Counsel SHALL refund $6,489.80 to Plaintiff as an offset for the EAJA
fees previously awarded pursuant to 28 U.S.C. § 2412(d).

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The Clerk of Court is directed to serve a copy of this Order on Plaintiff Rodney
Len Flood, 153 N. Yosemite Ave., Fresno, CA 93701.

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IT IS SO ORDERED.
Dated:

September 24, 2024

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