Foster v. Commissioner of Social Security
Filing
21
ORDER signed by Magistrate Judge Dale A. Drozd on 4/29/2015 ORDERING 19 Plaintiff's Motion for Attorney Fees is GRANTED; Counsel for plaintiff is awarded $12,083.43 in attorney fees under Sec 406(b); the Commissioner is directed to pay th e fee forthwith and remit to plaintiff the remainder of his withheld benefits; and upon receipt of the $12,083.43 in attorney fees pursuant to Sec 406(b), counsel shall reimburse plaintiff in the amount of $5,300 previously paid by the government under the EAJA. (Reader, L)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
HAROLD ARTHUR FOSTER,
12
Plaintiff,
13
14
15
No. 2:13-cv-1593 DAD
v.
ORDER
CAROLYN W. COLVIN, Commissioner
of Social Security,
16
Defendant.
17
Plaintiff brought this action seeking judicial review of a final administrative decision
18
19
denying his application for disability benefits under Title II of the Social Security Act. By order
20
filed September 30, 2014, this case was remanded to the Commissioner with instructions to award
21
benefits. (Dkt. No. 14.) On March 2, 2015, counsel for plaintiff filed a motion for an award of
22
attorney‟s fees pursuant to 42 U.S.C. § 406(b). (Dkt. No. 19.)
According to the motion, at the outset of the representation, plaintiff and his counsel
23
24
entered into a contingent-fee agreement. (Ex. 1 (Dkt. No. 19-1) at 1.1) Pursuant to that
25
agreement plaintiff‟s counsel now seeks attorney fees in the amount of $12,083.43, which
26
represents 12.5% of the retroactive disability benefits received by plaintiff on remand, for
27
1
28
Page number citations such as this one are to the page number reflected on the court‟s CM/ECF
system and not to page numbers assigned by the parties.
1
1
approximately 33.10 hours of attorney time expended on this matter. Defendant filed a response
2
on March 16, 2015, stating that “[t]he Commissioner takes no position on whether the gross fee
3
of (sic) that Counsel requests under the Social Security Act is reasonable under the case law.”
4
(Dkt. No. 20 at 2.)
5
6
7
8
9
10
11
Attorneys are entitled to fees for cases in which they have successfully represented social
security claimants.
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.
12
42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42
13
U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing
14
party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)
15
(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although an attorney fee
16
award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has
17
standing to challenge the award. Craig v. Sec‟y Dep‟t of Health & Human Servs., 864 F.2d 324,
18
328 (4th Cir. 1989). The goal of fee awards under § 406(b) is to provide adequate incentive to
19
attorneys for representing claimants while ensuring that the usually meager disability benefits
20
received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989).
21
The 25% statutory maximum fee is not an automatic entitlement, and the court must
22
ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section]
23
406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b)
24
instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25
25
percent boundary . . . the attorney for the successful claimant must show that the fee sought is
26
reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a
27
reasonable fee award under § 406(b)(1)(A) must respect „the primacy of lawful attorney-client fee
28
arrangements,‟ „looking first to the contingent-fee agreement, then testing it for reasonableness.‟”
2
1
Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793 & 808). The Supreme Court has
2
identified five factors that may be considered in determining whether a fee award under a
3
contingent-fee arrangement is unreasonable and therefore subject to reduction by the court: (1)
4
the character of the representation; (2) the results achieved by the representative; (3) whether the
5
attorney engaged in dilatory conduct in order to increase the accrued amount of past-due benefits;
6
(4) whether the benefits are large in comparison to the amount of time counsel spent on the case;
7
and (5) the attorney‟s record of hours worked and counsel‟s regular hourly billing charge for
8
noncontingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 808). Below
9
the court will consider these factors in assessing whether the fee requested by counsel in this case
10
pursuant to 42 U.S.C. § 406(b) is reasonable.
11
Here, there is no indication that a reduction of fees is warranted due to any substandard
12
performance by counsel. Rather, counsel is an experienced attorney who secured a successful
13
result for plaintiff. There is also no evidence that plaintiff‟s counsel engaged in any dilatory
14
conduct resulting in excessive delay. The court finds that the $12,083.43 fee, which represents
15
12.5 % of the past-due benefits paid to plaintiff, is not excessive in relation to the benefits
16
awarded. (Ex. 2 (Dkt. No. 19-2) at 1-6.) In making this determination, the court recognizes the
17
contingent fee nature of this case and counsel‟s assumption of the risk of going uncompensated in
18
agreeing to represent plaintiff on such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037
19
(N.D. Cal. 2003). Finally, counsel has submitted a detailed accounting of his billing in support of
20
the requested fee.
21
Accordingly, for the reasons stated above, the court concludes that the fees sought by
22
counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social
23
Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013)
24
(granting petition pursuant to 406(b) for $17,893.75 in attorney‟s fees); Coulter v. Commissioner
25
of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8,
26
2013) (recommending award of $15,084.23 in attorney‟s fees pursuant to 406(b)); Taylor v.
27
Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting
28
petition pursuant to 406(b) for $20,960 in attorneys‟ fees); Jamieson v. Astrue, No. 1:09cv0490
3
1
LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in
2
attorney fees pursuant to 406(b)).
3
An award of § 406(b) fees is, however, offset by any prior award of attorney‟s fees
4
granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S.
5
at 796. Here, plaintiff‟s counsel was previously awarded $5,300 in EAJA fees (see Dkt. No. 18)
6
and the award under § 406(b) must be offset by that amount.
7
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff‟s motion for attorney fees (Dkt. No. 19) under 42 U.S.C. § 406(b) is
8
9
granted;
10
2. Counsel for plaintiff is awarded $12,083.43 in attorney fees under § 406(b).
11
The Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder of his
12
withheld benefits; and
13
3. Upon receipt of the $12,083.43 in attorney fees pursuant to § 406(b), counsel
14
shall reimburse plaintiff in the amount of $5,300 previously paid by the government under the
15
EAJA.
16
Dated: April 29, 2015
17
18
19
20
21
DAD:6
Ddad1\orders.soc sec\foster1593.406(b).ord.docx
22
23
24
25
26
27
28
4
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?