Borges v. Commissioner of Social Security

Filing 37

ORDER signed by Magistrate Judge Dennis M. Cota on 9/1/2021 GRANTING 35 Motion for Attorney Fees. Counsel is awarded fees pursuant to 42 U.S.C. § 406 (b) in the amount of $39,992.50, paid to counsel by the Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld, to the extent such benefits have not already been paid to Plaintiff. Counsel shall reimburse to Plaintiff $15,000.00 previously paid to counsel under the EAJA. (Zignago, K.)

Case 2:17-cv-00625-DMC Document 37 Filed 09/01/21 Page 1 of 4
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATHEY KELLEE BORGES,

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Plaintiff,

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No. 2:17-CV-0625-DMC

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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

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

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Final judgement of remand was entered on January 8, 2020. See ECF No. 34. Pending before the

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Court is Plaintiff’s counsel’s motion for an award of attorney’s fees in the amount of $39,992.50

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under 42 U.S.C. § 406(b). See ECF No. 35. Plaintiff was provided notice of counsel’s motion

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and has not filed any response thereto.

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Case 2:17-cv-00625-DMC Document 37 Filed 09/01/21 Page 2 of 4
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I. PROCEDURAL HISTORY
Plaintiff’s representation in this case was provided by way of a March 15, 2017,

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contingent fee agreement whereby Plaintiff agreed to pay counsel 25% of past-due benefits

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awarded after a district court remand. See ECF No. 35-1. Plaintiff initiated this action for

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judicial review of an unfavorable administrative decision on March 24, 2017. See ECF No. 1.

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Following briefing on the merits, this Court affirmed the Commissioner’s final unfavorable

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decision. See ECF No. 25. Plaintiff appealed this decision to the Ninth Circuit Court Appeals.

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See ECF No. 27. On appeal, the parties jointly moved for a full remand, which the Ninth Circuit

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granted and the matter was remanded to this Court for entry of a judgment of remand. See ECF

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No. 31. In compliance with the Ninth Circuit’s order, this Court issued a final judgment of

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remand on January 8, 2020. Pursuant to the stipulation of the parties while the matter was still

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pending before the Ninth Circuit, Plaintiff was awarded $15,000.00 in attorney’s fees and costs

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under the Equal Access to Justice Act (EAJA), payable to Plaintiff less any offsets to be

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determined by the government. See ECF No. 35-2, pg. 5. On February 14, 2021, the

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Commissioner notified Plaintiff that $41,091.00 had been withheld from past-due benefits

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awarded, reflecting 25% of a total award of $164,364.00. See ECF No 35-3.

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

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

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court may determine and allow as part of its judgment a reasonable fee for such representation,

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not in excess of 25 percent of the total past-due benefits to which the claimant is entitled by

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

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certified for such representation except as allowed in this provision. See id.

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A remand constitutes a “favorable judgment” under § 406(b). See Shalala v.

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

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

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award fees under § 406(b) when it remands for further proceedings and, following remand, the
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claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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counsel’s regular hourly billing charge for non-contingent cases. See id.

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Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s
fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796.
The Commissioner has filed a response to Plaintiff’s counsel’s motion. This

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

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

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

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

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considered the factors above, the Court finds Plaintiff’s counsel’s request reasonable given the fee
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agreement with Plaintiff, the results achieved, and the lack of any evidence of dilatory conduct

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

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Commissioner stipulated to an award of $15,000.00 under the EAJA, which Plaintiff’s counsel

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

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observes that Plaintiff’s counsel’s request for $39,992.50 represents a discount of the 25%

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Plaintiff agreed to and which the agency withheld.

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III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s counsel’s motion, ECF No. 35, is granted and counsel is

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awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $39,992.50, paid to counsel by the

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

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extent such benefits have not already been paid to Plaintiff; and

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Counsel shall reimburse to Plaintiff $15,000.00 previously paid to counsel

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under the EAJA.

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Dated: September 1, 2021
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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