Kyker v. Commissioner of Social Security

Filing 32

ORDER signed by Magistrate Judge Allison Claire on 1/27/17 ORDERING that counsel's 29 renewed Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (ECF No. 29), is DENIED without prejudice to its renewal in proper form within 30 days. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SARA LEANN KYKER,

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Plaintiff,

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No. 2:14-cv-0534 AC

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner Of Social Security,1
Defendant.

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Now pending before the court is the November 30, 2016 renewed motion of plaintiff’s

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counsel for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 29. Counsel’s

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original request was denied because it failed to present any evidence establishing the amount of

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the award plaintiff had received, and upon which the 25% contingency fee would be based. See

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ECF No. 28. On December 1, 2016, defendant filed a response asserting that defendant “is not in

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a position to either assent or object” to the fee request. ECF No. 30. For the reasons set forth

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below, the motion will again be denied without prejudice to its renewal in proper form.
Plaintiff’s counsel asserts that “Kyker agreed at the outset of the representation that

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Lawrence D. Rohlfing would receive a fee of 25% of the past due benefits awarded ….” ECF

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On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner
of the Social Security Agency. See https://www.ssa.gov/agency/commissioner.html (last visited
by the court on January 27, 2017).
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No. 29 at 7. In support of this assertion, counsel filed a declaration stating that the 25%

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contingency agreement, attached as “Exhibit 1,” is “dated February 6, 2014.” ECF No. 29 at 9

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¶ 2. That date is just prior to the date plaintiff filed this lawsuit.

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However, the contingency fee agreement attached to the declaration as Exhibit 1 is dated

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September 10, 2015, which is not the “outset” of counsel’s representation of plaintiff. See ECF

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No. 29-1. To the contrary, the attached agreement was signed after the court had already

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remanded the case for the immediate calculation and payment of benefits. See ECF No. 15 (May

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29, 2015).2

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The court acknowledges that counsel in fact represented plaintiff during this court

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proceeding. Therefore, if counsel means to argue that the fact of her successful representation,

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alone, is what entitles her to take 25% of plaintiff’s past-due benefits, then she is entitled to apply

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for the fee on that basis, and to explain the legal basis for it. However, counsel may not request

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the fee based (at least in part) upon the representation that her client signed a written 25%

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contingency fee arrangement prior to her representation, when in fact the written agreement was

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signed after plaintiff had already received the benefit of counsel’s work.

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Accordingly, IT IS HEREBY ORDERED that counsel’s renewed Motion for Attorney

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Fees Pursuant to 42 U.S.C. § 406(b) (ECF No. 29), is DENIED without prejudice to its renewal in

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proper form within 30 days.

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DATED: January 27, 2017

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The agreement also comes after counsel’s brief was filed in opposition to defendant’s motion to
alter or amend the judgment. See ECF Nos. 19, 21 (July 30, 2015).
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