Seevers v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Deborah Barnes on 8/16/2021 GRANTING 17 Motion for Attorney Fees and AWARDING Counsel for plaintiff $40,000 in attorney fees. The Commissioner is DIRECTED to pay the fee forthwith and remit to plaintiff the remainder any withheld benefits. Upon receipt of the $40,000, counsel shall reimburse plaintiff in the amount of $8,000 previously paid by the government under the EAJA. (Huang, H)

Case 2:18-cv-00208-DB Document 19 Filed 08/17/21 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON S. SEEVERS,

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No. 2:18-cv-0208 DB

Plaintiff,

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v.

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ORDER

ANDREW SAUL, Commissioner of Social
Security,

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Defendant.

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Plaintiff brought this action seeking judicial review of a final administrative decision

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denying an application for Disability Insurance Benefits under Title II of the Social Security Act. 1

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On August 5, 2019, the court granted plaintiff’s motion for summary judgment in part and

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remanded this matter for further proceedings. (ECF No. 13.) On remand, plaintiff was awarded

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past due benefits. (Pl.’s Mot. (ECF No. 17-2) at 1-6.)
On April 9, 2021, counsel for plaintiff filed a motion for an award of attorney’s fees

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pursuant to 42 U.S.C. § 406(b). (ECF No. 17.) At the outset of the representation, plaintiff and

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plaintiff’s counsel entered into a contingent-fee agreement. (ECF No. 17-1 at 1-4.) Pursuant to

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that agreement plaintiff’s counsel now seeks attorney’s fees in the amount of $40,000, which

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Both parties have previously consented to Magistrate Judge jurisdiction over this action
pursuant to 28 U.S.C. § 636(c). (See ECF Nos. 4 & 7.)
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Case 2:18-cv-00208-DB Document 19 Filed 08/17/21 Page 2 of 4
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represents less than 21% of the retroactive disability benefits received by plaintiff on remand.

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(Pl.’s Mot. (ECF No. 17) at 1.) Defendant “takes no position on the reasonableness of the

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request.” (ECF No. 18 at 5.)

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Attorneys are entitled to fees for cases in which they have successfully represented social
security claimants.

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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, 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.

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42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42

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U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing

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party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)

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(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although an attorney fee

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award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has

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standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324,

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328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of fee

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awards under § 406(b) is to provide adequate incentive to attorneys for representing claimants

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while ensuring that the usually meager disability benefits received are not greatly depleted.

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Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989).

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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 actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section]

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406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b)

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instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25

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percent boundary . . . the attorney for the successful claimant must show that the fee sought is

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reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a

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reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee

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Case 2:18-cv-00208-DB Document 19 Filed 08/17/21 Page 3 of 4
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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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The Supreme Court has identified five factors that may be considered in determining

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whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to

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reduction by the court: (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 noncontingent cases. Crawford, 586 F.3d at 1151-52

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(citing Gisbrecht, 535 U.S. at 808). Below, the court will consider these factors in assessing

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whether the fee requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable.

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Here, there is no indication that a reduction of fees is warranted due to any substandard

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performance by counsel. Rather, plaintiff’s counsel is an experienced attorney who secured a

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successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any

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dilatory conduct resulting in excessive delay. The court finds that the $40,00 fee based on 43.74

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hours of attorney time, which represents less than 21% of the past-due benefits paid to plaintiff, is

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not excessive in relation to the benefits awarded. (ECF No. 17-4.) In making this determination,

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the court recognizes the contingent fee nature of this case and counsel’s assumption of the risk of

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going uncompensated in agreeing to represent plaintiff on such terms. See Hearn v. Barnhart,

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262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003).

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Accordingly, for the reasons stated above, the court concludes that the fees sought by

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counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social

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Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013)

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(granting petition pursuant to 406(b) for $17,893.75 in attorney’s fees); Coulter v. Commissioner

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of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8,

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2013) (recommending award of $15,084.23 in attorney’s fees pursuant to 406(b)); Taylor v.

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Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting

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petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue, No. 1:09cv0490
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Case 2:18-cv-00208-DB Document 19 Filed 08/17/21 Page 4 of 4
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LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in

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attorney fees pursuant to 406(b)).

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An award of § 406(b) fees is, however, normally offset by any prior award of attorney’s

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fees granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535

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U.S. at 796. Here, plaintiff’s counsel was previously awarded $8,000 in EAJA fees and the award

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under § 406(b) must be offset by that amount. (ECF No. 16.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s April 9, 2021 motion for attorney fees under 42 U.S.C. § 406(b), (ECF No.

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17), is granted;
2. Counsel for plaintiff is awarded $40,000 in attorney fees under § 406(b). The

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Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder any

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withheld benefits; and

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3. Upon receipt of the $40,000 in attorney fees pursuant to § 406(b), counsel shall

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reimburse plaintiff in the amount of $8,000 previously paid by the government under the EAJA.

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Dated: August 16, 2021

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DLB:6
DB\orders\orders.soc sec\seevers0208.406(b).ord

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