Francis v. Commissioner of Social Security

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 12/22/2020 GRANTING 24 Motion for Attorney Fees and AWARDING Counsel for plaintiff $9,647.50 in attorney's 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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JACQUELINE DENISE FRANCIS,

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Plaintiff,

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No. 2:17-cv-01993 AC

v.

ORDER

ANDREW SAUL, 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 her application for a period of disability benefits under Title XVI of

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the Social Security Act (“the Act”). ECF No. 1 at 1. On January 2, 2019, the court granted

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plaintiff’s motion for summary judgment, denied the Commissioner’s cross-motion for summary

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judgment, and remanded the action to the Commissioner with for further consideration. ECF

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No. 18.
Now pending before the court is plaintiff’s December 21, 2020 motion for an award of

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attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 24. On December 22, 2020, 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. 25 at 2. For the reasons set forth below, the motion will be

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granted.

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I. REASONABLENESS OF FEE REQUEST
At the outset of the representation, plaintiff and his counsel entered into a contingent-fee

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agreement. ECF No. 24-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s

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fees in the amount of $9,647.50, which represents 25% of the $38,590.00 in retroactive disability

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benefits received by plaintiff on remand, for 21.3 hours of attorney time expended on this matter.

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ECF No. 24 at 3.

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Attorneys are entitled to fees for cases in which they have successfully represented social
security claimants:
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.
42 U.S.C. § 406(b)(1)(A).
“In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988, the

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fee is paid by the claimant out of the past-due benefits awarded; the losing party is not responsible

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for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing

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Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under § 406(b) is “‘to

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protect claimants against “inordinately large fees” and also to ensure that attorneys representing

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successful claimants would not risk “nonpayment of [appropriate] fees.”’” Parrish v. Comm'r of

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Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 535 U.S. at 805).

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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 ECF No. 24-3. There is no indication that a reduction of fees is warranted due to

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any substandard performance by counsel. There is also no evidence that plaintiff’s counsel

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engaged in any dilatory conduct resulting in excessive delay. The court finds that the $9,647.50

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fee, which represents 25% of the $38,590.00 in past-due benefits paid to plaintiff, is not excessive

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in relation to the benefits awarded. In making this determination, the court recognizes the

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contingent fee nature of this case and counsel’s assumption of the risk of going uncompensated in

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agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys

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assumed significant risk in accepting these cases, including the risk that no benefits would be

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awarded or that there would be a long court or administrative delay in resolving the cases”).

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Finally, counsel has submitted a detailed billing statement in support of the requested fee. ECF

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No. 24-4.

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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 $3,950.00 in EAJA fees. See ECF No. 23.

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However, counsel never received this payment because it was utilized by the U.S. Department of

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the Treasury to pay overdue child support debt. ECF No. 24-7. Thus, no EAJA payment need be

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remitted in this case.

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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; and

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2. Counsel for plaintiff is awarded $9,647.50 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.

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DATED: December 22, 2020

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