Smith v. Astrue

Filing 37

Order by Hon. Phyllis J. Hamilton granting 35 Motion for Attorney Fees.(pjhlc3, COURT STAFF) (Filed on 2/20/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CLIFFORD O. SMITH II,

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For the Northern District of California

United States District Court

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No. C 10-4814 PJH

Plaintiff,

ORDER GRANTING APPLICATION FOR
AWARD OF ATTORNEY’S FEES

v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
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Harvey Sackett, counsel for plaintiff Clifford O. Smith, applies for an award of

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attorney’s fees and costs pursuant to the Social Security Act, 42 U.S.C. § 406(b)(1)(A).

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Defendant Carolyn W. Colvin does not oppose the fee application. Having reviewed the

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papers and considered the relevant authority, the court GRANTS Sackett’s application for a

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net award of fees in the amount of $2,886.19, as set forth below.

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Plaintiff entered a contingent fee agreement with Sackett for 25% of past due

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benefits if he received a favorable decision at any time following an unfavorable or partially

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unfavorable administrative law judge decision either at any administrative level or at the

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judicial level. Mot., Ex. C. (doc. no. 35-5). Plaintiff commenced the instant action to appeal

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an unfavorable decision by an administrative law judge, denying his applications for Social

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Security benefits. By order entered March 26, 2012, the court remanded the matter for

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further administrative proceedings. By order entered July 31, 2012, the court granted in

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part plaintiff’s motion for attorney’s fees and costs pursuant to the Equal Access to Justice

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Act (“EAJA”), 28 U.S.C. § 2412(d), ordering an award in the amount of $7,084.31. Upon

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remand, the administrative law judge issued a favorable decision on March 5, 2013. Mot.,

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Ex. A (doc. no. 35-3). Plaintiff was awarded past due benefits in the amount of $70,882.00.

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Mot., Ex. B (doc. no. 35-4).

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Sackett seeks an award of $9,970.50 pursuant to the contingent fee agreement,

record, the court finds that $9,970.50 is a reasonable fee for the services rendered,

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pursuant to 42 U.S.C. § 406(b). See Gisbrecht v. Barnhart, 535 U.S. 789, 807-08 (2002).

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Sackett further requests that plaintiff be credited in the amount of $7,084.31 toward the fee

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award as a result of the EAJA fees awarded by the court. Id. at 796 (fees may be awarded

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both as payable by the government under EAJA and as fees payable under § 406(b) out of

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the claimant's past-due Social Security benefits, “but the claimant's attorney must ‘refund to

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For the Northern District of California

which falls within the statutory maximum of 25% of in past-due benefits. In light of the

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United States District Court

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the claimant the amount of the smaller fee’”) (quoting Act of Aug. 5, 1985, Pub. L. 99–80, §

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3, 99 Stat. 186). Thus, the resulting net fee due to Sackett is the amount of $2,886.19.

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For the reasons set forth above, the fee application is GRANTED. The court awards

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Sackett fees pursuant to § 406(b)(1)(A) in the amount of $9,970.50, which is offset by the

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EAJA fee award of $7,084.31, for a net fee award of $2,886.19, which is payable to Sackett

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out of the amount of the past-due benefits.

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IT IS SO ORDERED.

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Dated: February 19, 2014

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Phyllis J. Hamilton
UNITED STATES DISTRICT JUDGE

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