Calkins v. Commissioner of Social Security

Filing 40

ORDER granting Motion for Attorney Fees signed by Magistrate Judge Allison Claire on 10/30/17. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN G. CALKINS,

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Plaintiff,

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No. 2:14-cv-1877 AC

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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Plaintiff sought judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”), denying his application for a period of disability and disability insurance

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benefits (“DIB”) benefits under Title II of the Social Security Act (“the Act”). On September 18,

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2015, the court granted plaintiff’s motion for summary judgment, denied the Commissioner’s

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cross-motion for summary judgment, and remanded the action to the Commissioner with

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instructions to award benefits. ECF No. 28.
Now pending before the court is plaintiff’s August 10, 2017 amended motion for an award

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of attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 34. On August 11, 2017, defendant

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filed a statement of non-opposition asserting that defendant “is not in a position to either assent or

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object” to the fee request. ECF No. 35.1 For the reasons set forth below, the motion will be

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granted.

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I. REASONABLENESS OF FEE REQUEST

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At the outset of the representation, plaintiff and his counsel entered into a contingent-fee

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agreement. ECF No. 34-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s

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fees in the amount of $11,520.00, which represents 25% of the $46,080.00 in retroactive

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disability benefits received by plaintiff on remand, for 29 hours of attorney time expended on this

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matter. ECF Nos. 34 at 2, 39 at 1-3.

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Attorneys are entitled to fees for cases in which they have successfully represented social
security claimants:

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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). “In contrast to fees awarded under fee-shifting provisions such as 42

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U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing

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party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)

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(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under

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§ 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that

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attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’”

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Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht,

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535 U.S. at 805).

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On October 18, 2017, the court ordered the plaintiff to file within 7 days a supplemental
memorandum providing information and relevant documentation that was missing from
plaintiff’s amended motion for attorney fees. ECF No. 38. Although the supplemental document
was filed one day late, the court will excuse the delay. However, counsel is cautioned that failure
to meet deadlines in the future may result in sanctions. E. D. Cal. R. 110.
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The 25% statutory maximum fee is not an automatic entitlement, and the court must

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ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not

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

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to review for reasonableness fees yielded by those agreements”). “Within the 25 percent

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boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable

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for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable

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fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee

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arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’”

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Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808).

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In determining whether the requested fee is reasonable, the court considers “‘the character

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of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151

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(quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted,

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the court considers whether the attorney provided “substandard representation or delayed the

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case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally,

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the court considers the attorney’s record of hours worked and counsel’s regular hourly billing

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charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at

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808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and

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labor required”). Below, the court will consider these factors in assessing whether the fee

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requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable.

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Here, plaintiff’s counsel is an experienced attorney who secured a successful result for

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plaintiff. See Declaration of Jesse S. Kaplan (“Kaplan Decl.”) (ECF No. 34) at 6 ¶4. There is no

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indication that a reduction of fees is warranted due to any substandard performance by counsel.

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There is also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in

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excessive delay. The court finds that the $11,520.00 fee, which represents 25% of the $46,080.00

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in past-due benefits paid to plaintiff, is not excessive in relation to the benefits awarded. 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 the risk of going uncompensated in agreeing to represent plaintiff on

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such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant risk in
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accepting these cases, including the risk that no benefits would be awarded or that there would be

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a long court or administrative delay in resolving the cases”). Finally, counsel has submitted a

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detailed billing statement in support of the requested fee. ECF No. 39 at 1-3.

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Accordingly, for the reasons stated above, the court concludes that the fees sought by
counsel pursuant to § 406(b) are reasonable.

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II. OFFSET FOR EAJA FEES
An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted

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under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796.

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Here, plaintiff’s attorney was previously awarded $5,501.57 in EAJA fees. See ECF No. 31.

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Counsel therefore must remit that amount to plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 30), is

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GRANTED;
2. Counsel for plaintiff is awarded $11,520.00 in attorney’s fees under § 406(b); the

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Commissioner shall certify that amount to be paid to counsel from the funds previously withheld

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for the payment of such fees; and

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3. Counsel for plaintiff is directed to remit to plaintiff the amount of $5,501.57 for EAJA

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fees previously paid to counsel by the Commissioner.

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DATED: October 30, 2017

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