Marks v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/21/19 DENYING without prejudice to renewal 22 Motion for Attorney Fees. Should plaintiff's counsel choose to re-file his motion for attorney fees, that motion shall be filed within 30 days of this order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAELONI DALE MARKS,

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Plaintiff,

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No. 2:16-cv-1701-EFB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff’s counsel moves for an award of attorney’s fees under 42 U.S.C. § 406(b). ECF

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No. 22. Plaintiff entered into a retainer agreement with his attorney which provides that he would

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pay counsel the lesser of 25 percent of any award of past-due benefits resulting from the appeal in

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this case, or $6,000. ECF No. 20-1. Counsel now seeks an award of $6,000, but has not shown

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whether that amount exceeds exceed 25 percent of past due benefits.
42 U.S.C. § 406 contains two subsections authorizing an award of attorney’s fees for

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counsel who successfully represents a Social Security claimant. “Section 406(a) grants the Social

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Security Administration exclusive jurisdiction to award fees for representation of a Social

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Security Claimant in proceedings before the Administration. Similarly, § 406(b) grants federal

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courts exclusive jurisdiction to award attorney’s fees for representation of the claimant in court.”

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Clark v. Astrue, 529 F.3d 1211, 1215 (9th Cir. 2008).

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Here, the relevant portion of Section 406(b) provides:

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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.

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42 U.S.C. § 406(b)(1)(A).1
Thus, this court may only award counsel’s request for $6,000 in fees if that amount does

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not exceed 25 percent of the past-due benefits awarded to plaintiff. Counsel, however, has not

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submitted any evidence establishing the amount of past-due benefits plaintiff was awarded. In

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fact, counsel has not even demonstrated that on remand the Commissioner found that plaintiff

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was entitled to disability benefits. Consequently, he has failed to demonstrate his entitlement to

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fees under § 406(b). Accordingly, the motion for attorney’s fees is denied without prejudice to

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renewal upon submission of a properly-supported motion for attorney’s fees.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 22) is denied without

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prejudice to renewal; and
2. Should plaintiff’s counsel choose to re-file his motion for attorney fees, that motion

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shall be filed within 30 days of this order.

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DATED: March 21, 2019.

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42 U.S.C. § 406(a) provides two ways in which counsel may obtain a fee award for
work performed at the administrative level. First, counsel may request that the Commissioner
award a “reasonable fee” for the rendered services. 42 U.S.C. § 406(a)(1). Second, in cases
where past due benefits are awarded, the Commissioner will award attorney’s fees where: (1) the
fee agreement is submitted prior to the Commissioner’s determination, (2) the fee specified in the
agreement does not exceed the lesser of 25 percent of past-due benefits or $6,000, and (3) the
Commissioner’s determination is favorable to the claimant. 42 U.S.C. § 406(a)(2)(A); 74
Fed.Reg. 6080-02 (Feb. 4, 2009) (increasing maximum award under § 406(a)(2) from $4,000 to
$6,000).
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