Marks v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/19/2019 GRANTING 26 Renewed Motion for Attorney Fees and AWARDING Plaintiff's Counsel $6,000.00 in fees. (Huang, H)

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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

ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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Plaintiff’s counsel has filed a renewed motion for an award of attorney’s fees under 42

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U.S.C. § 406(b).1 ECF No. 26. Plaintiff entered into a retainer agreement with his attorney

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which provides that he would pay counsel the lesser of 25 percent of any award of past-due

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benefits resulting from the appeal in this case, or $6,000. ECF No. 26-1. Counsel now seeks an

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award of attorney’s fees in the amount of $6,000. See ECF No. 27-2. Counsel spent 47

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professional hours on plaintiff’s case. ECF No. 26 at 3.

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Counsel’s original motion failed to demonstrate his entitlement to attorney’s fees and,
consequently, it was denied without prejudice to renewal. ECF No. 25.
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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:

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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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Rather than being paid by the government, fees under the Social Security Act are awarded

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out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991),

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receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991).

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However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also

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must ensure that the requested fee is reasonable. Bisbrecht v. Barnhart, 535 U.S. 789, 808-09

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(2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory

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ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those

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agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must

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show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may

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properly reduce the fee for substandard performance, delay, or benefits that are not in proportion

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to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en

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banc).

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After this court remanded for further proceedings, plaintiff was found disabled and

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awarded past-due benefits in the amount of $47,370. ECF Nos. 27-1 & 27-2. Counsel’s request

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for $6,000, which is less than the statutory maximum, would constitute an hourly rate of $127.66.

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This rate is clearly reasonable given the risk of loss taken in representing plaintiff and the results

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achieved in this case. See Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003)

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(discussing cases where courts granted fees based on hourly rates from $187.55 to $694.44, and

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awarding effective hourly rate of $450.00); Mondello v. Astrue, No. Civ S-04-973 DAD, 2009

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WL 636542, at *2 (E.D. Cal. March 11, 2009) (awarding fees that represented a rate of

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approximately $801.00 per hour); see also De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018

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WL 4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective hourly range of $1,116.26).

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s renewed motion for attorney’s fees (ECF No. 26) is granted; and

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2. Plaintiff’s counsel is awarded $6,000 in fees pursuant to 42 U.S.C. § 406(b).2

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DATED: November 19, 2019.

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Because counsel did not seek fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d)(1), the award is not subject to offset. See Gisbrecht v. Barnhart, 535 U.S. 789, 796
(2002) (holding that where attorney’s fees are awarded under both EAJA and § 406(b), the
attorney must refund the smaller of the two awards to the plaintiff).
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