Devigili v. Colvin

Filing 32

ORDER GRANTING MOTION FOR FEES 30 . (Illston, Susan) (Filed on 6/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH DEVIGILI,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-02237-SI
ORDER GRANTING MOTION FOR
FEES

v.
NANCY A. BERRYHILL,

Re: Dkt. No. 30

Defendant.

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Now before the Court is plaintiff’s motion for attorney’s fees pursuant to 42 U.S.C.

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§ 406(b). Dkt. No. 30. Plaintiff’s counsel served a copy of this motion on plaintiff. Dkt. No. 31.

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The government did not file a response.

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Attorney Robert C. Weems represented plaintiff before this Court on appeal of his

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application for Disability Insurance Benefits under Title II of the Social Security Act. Plaintiff

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filed a motion for summary judgment and the Commissioner later agreed to voluntarily remand

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the case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). Dkt.

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Nos. 19, 24. Pursuant to the parties’ stipulation, this Court remanded the case to the Social

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Security Administration on January 20, 2016, and entered judgment in plaintiff’s favor the

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following day. Dkt. Nos. 25, 27. On April 20, 2016, pursuant to stipulation, this Court approved

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an award of $4,250.00 in attorney’s fees, costs, and expenses to plaintiff under the Equal Access to

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Justice Act (“EAJA”). Dkt. No. 29. On November 10, 2016, the Administrative Law Judge ruled

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in plaintiff’s favor and awarded plaintiff past-due benefits totaling $76,391.00. Dkt. No. 30 at 1-2;

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Dkt. Nos. 30-2, 30-3. The Social Security Administration withheld $19,097.75 of the award,
equal to 25 percent of the past-due benefits, in the event plaintiff’s counsel were to petition for
attorney’s fees. Dkt. No. 30 at 1; Dkt. No. 30-4.

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Plaintiff’s counsel now seeks an award under 42 U.S.C. § 406(b) of $15,278.00 in

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attorney’s fees, which represents 20 percent of the past-due benefits due to Mr. Devigili. Under

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the fee agreement between plaintiff and his counsel, plaintiff’s counsel is to be paid a maximum of

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25 percent of the past-due benefits for successful work performed. Dkt. No. 30-1 at 1. The fee

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award would be reduced by $4,250.00 in fees already awarded counsel under EAJA, to be

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immediately credited back to Mr. Devigili, for a net award of $11,028.00. The government has

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not objected to the fee request. In support of the motion, plaintiff’s counsel has submitted a

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declaration setting forth counsel’s customary billing rates, the fee agreement with plaintiff, the

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fully favorable decision after remand, notices of allowance and calculation of benefits to plaintiff,

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and an invoice.

United States District Court
Northern District of California

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Section 406(b) of the Act provides that when a plaintiff prevails on a judgment, the Court

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may determine a reasonable fee for the plaintiff’s counsel, which can be no more than 25 percent

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of the plaintiff’s entitlement to the total past-due benefits. 42 U.S.C. § 406(b)(1)(A). The Court

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must review counsel’s request for fees “as an independent check” to assure that the contingency

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fee agreement will “yield reasonable results in particular cases.” See Gisbrecht v. Barnhart, 535

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U.S. 789, 807 (2002). Section 406(b) “does not displace contingent-fee agreements within the

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

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those agreements.” Id. at 808-09. In making its determination, the Court should consider the

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character of the representation and the results achieved. Id. at 808. An award of § 406 fees is

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offset by any award of attorney fees granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535

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U.S. at 796.

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The Court finds that the amount of fees sought is reasonable. As an initial matter, the

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Court finds that the fee agreement is within the statutory ceiling; the fee agreement between

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plaintiff and his counsel provides that if plaintiff received a favorable decision, plaintiff agreed to

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pay counsel a fee no greater than 25 percent of the past-due benefits he was awarded. Dkt. No.

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30-1. The Court further finds that the work by plaintiff’s counsel was not insubstantial; plaintiff’s

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counsel was successful in having this matter remanded back to the Social Security Administration,

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which then awarded obtained past-due benefits as well as ongoing benefits. Plaintiff’s counsel
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and his legal staff spent 28.4 hours on the matter, for an effective hourly rate of $537.96. Dkt. No.

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30-5 at 3. After review of the record, the Court finds that the requested attorney’s fees are

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reasonable and do not constitute a windfall. See Gisbrecht, 535 U.S. 789; Hearn v. Barnhart, 262

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F. Supp. 2d 1033, 1036-37 (N.D. Cal. 2003).

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CONCLUSION

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For the foregoing reasons, the Court GRANTS plaintiff’s motion for attorney’s fees and

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awards fees in the amount of $15,278.00 pursuant to 42 U.S.C. § 406(b)(1)(A). The Court further

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directs the amount of $4,250.00, previously awarded and delivered to counsel under the EAJA, be

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credited to Mr. Devigili and offset against this sum, for a net total attorney’s fee under § 406(b) of

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United States District Court
Northern District of California

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$11,028.00. The Commissioner shall pay the attorney’s fees to plaintiff’s counsel out of the

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withheld amount within 30 days of the date of this order.

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IT IS SO ORDERED.
Dated: June 6, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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