Bailey v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Dennis M. Cota on 8/31/2021 GRANTING 21 Motion for Attorney Fees. Counsel is awarded fees pursuant to 42 U.S.C. § 406 (b) in the amount of $7,999.00, paid to counsel by the Commissioner of Social Securit y out of past-due benefits awarded to Plaintiff and withheld on 3/17/2020, to the extent such benefits have not already been paid to Plaintiff. Counsel shall reimburse to Plaintiff $2,900.00 previously paid to counsel under the EAJA. (Zignago, K.)

Case 2:15-cv-00153-DMC Document 28 Filed 09/01/21 Page 1 of 4
1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ALISHA BAILEY,

12

Plaintiff,

13
14
15

No. 2:15-CV-0153-DMC

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

16
17

Plaintiff, who is proceeding with retained counsel, brought this action for judicial

18
19

review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

20

Final judgement was entered on March 14, 2016. See ECF No. 18. Pending before the Court is

21

Plaintiff’s counsel’s motion for an award of attorney’s fees in the amount of $7,799.00 under 42

22

U.S.C. § 406(b). See ECF No. 21. Plaintiff was provided notice of counsel’s motion and has not

23

filed any response thereto.

24

///

25

///

26

///

27

///

28

///
1

Case 2:15-cv-00153-DMC Document 28 Filed 09/01/21 Page 2 of 4
1

I. PROCEDURAL HISTORY
Plaintiff’s representation in this case was provided by way of a December 31,

2
3

2014, contingent fee agreement whereby Plaintiff agreed to pay counsel: (1) 25% of any benefits

4

awarded at or prior to a first administrative hearing, or $6,000.00, whichever is smaller; (2) 25%

5

of any benefits awarded upon reversal of an unfavorable administrative decision for work before

6

the agency; and (3) a separate 25% of past-due benefits awarded upon reversal of an unfavorable

7

administrative decision for work before the court. See ECF No. 21-1, pg. 1. Plaintiff initiated

8

this action for judicial review of an unfavorable administrative decision on January 20, 2015. See

9

ECF No. 1. Following briefing on the merits, the matter was remanded on March 14, 2016, for

10

further administrative proceedings. See ECF No. 17. Pursuant to the stipulation of the parties,

11

Plaintiff was awarded $2,900.00 in attorney’s fees and costs under the Equal Access to Justice

12

Act (EAJA), less any offsets to be determined by the government. See ECF No. 20. On March

13

1, 2017, the Commissioner rendered a fully favorable decision. See ECF No. 21-2, pgs. 4-12. On

14

March 17, 2020, the Commissioner notified Plaintiff’s counsel that $7,799.75 had been withheld

15

from past-due benefits awarded Plaintiff, constituting 25% of the total $31,199.00 in past-due

16

benefits awarded.1 See ECF No. 21-3.

17
18

II. DISCUSSION
Under the Social Security Act, “[w]henever a court renders a judgment favorable

19
20

to a claimant under this subchapter who was represented before the court by an attorney, the court

21

may determine and allow as part of its judgment a reasonable fee for such representation, not in

22

excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of

23

such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such

24

representation except as allowed in this provision. See id.

25

///

26

///

27
1

28

The Court observes that Plaintiff’s counsel is requesting $0.75 less than the amount withheld by the

Commissioner.

2

Case 2:15-cv-00153-DMC Document 28 Filed 09/01/21 Page 3 of 4
A remand constitutes a “favorable judgment” under § 406(b). See Shalala v.

1
2

Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the

3

issue, all other circuits to address the issue have concluded that the district court is authorized to

4

award fees under § 406(b) when it remands for further proceedings and, following remand, the

5

claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D.

6

Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due

7

benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen

8

v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006).

9

The 25 percent statutory maximum fee is not an automatic entitlement, and the

10

court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535

11

U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful

12

claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In

13

determining the reasonableness of fees sought, the district court must respect ‘the primacy of

14

lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then

15

testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting

16

Gisbrecht, 535 U.S. at 793 and 808).

17

The Supreme Court has identified five factors that may be considered in

18

determining whether a fee award under a contingent-fee agreement is unreasonable and therefore

19

subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S.

20

at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the

21

representative; (3) whether the attorney engaged in dilatory conduct in order to increase the

22

accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the

23

amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and

24

counsel’s regular hourly billing charge for non-contingent cases. See id.
Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s

25
26

fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796.

27

///

28

///
3

Case 2:15-cv-00153-DMC Document 28 Filed 09/01/21 Page 4 of 4
1

The Commissioner has filed a response to Plaintiff’s counsel’s motion. This

2

filing, however, amounts to nothing more than a recitation of applicable caselaw and contains

3

nothing in the way of analysis specific to this case. In particular, the Commissioner’s response

4

does not set forth any reasons why the Court should deny, in whole or in part, counsel’s motion.

5

The Court, therefore, considers Plaintiff’s counsel’s motion as unopposed. In this case, having

6

considered the factors above, the Court finds Plaintiff’s counsel’s request reasonable given the fee

7

agreement with Plaintiff, the results achieved, and the lack of any evidence of dilatory conduct

8

designed to increase past-due benefits. In making this finding, the Court notes that the

9

Commissioner stipulated to an award of $2,900.00 under the EAJA, which Plaintiff’s counsel

10

appropriately asks be ordered to offset any award requested in the current motion.

11
12

III. CONCLUSION

13

Accordingly, IT IS HEREBY ORDERED that:

14

1.

Plaintiff’s counsel’s motion, ECF No. 21, is granted and counsel is

15

awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $7,999.00, paid to counsel by the

16

Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld on

17

March 17, 2020, to the extent such benefits have not already been paid to Plaintiff; and

18

2.

19

Counsel shall reimburse to Plaintiff $2,900.00 previously paid to counsel

under the EAJA.

20
21

Dated: August 31, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
4