Deleuse v. Astrue

Filing 32

ORDER by Magistrate Judge Howard R. Lloyd granting 28 Motion for Attorney Fees. (hrllc2, COURT STAFF) (Filed on 9/6/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ANGELO A. DELEUSE,
Plaintiff,

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Case No. 5:12-cv-02708-HRL
ORDER GRANTING MOTION FOR
ATTORNEY'S FEES

v.
CAROLYN W. COLVIN,

Re: Dkt. No. 28

Defendant.
Angelo Deleuse filed this appeal, seeking judicial review of the Commissioner’s decision

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denying his application for a period of disability and disability insurance benefits under Title II of

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the Social Security Act. This court granted Deleuse’s summary judgment motion, denied the

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Commissioner’s summary judgment motion, and remanded the matter for payment of benefits.

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(Dkt. 24). Judgment to that effect was issued the same day. (Dkt. 25).

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Deleuse and the Commissioner subsequently filed a stipulation for the award of $3,050.00

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in attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, and

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$60.00 in costs as authorized by 28 U.S.C. § 1920. The court entered an order approving that

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stipulation. (Dkt. 27).

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On remand, the Commissioner calculated past-due benefits of $52,065.00, and the

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Commissioner withheld 25% of those past-due benefits, or $13,016.25, to cover Deleuse’s

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attorney’s fees. (Dkt. 28, Cho Decl. ¶ 3, Ex. 2). The amount withheld reflects the contingent fee

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agreement between Deleuse and his counsel, the Law Offices of Lawrence D. Rohlfing. Among

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other things, that agreement provides that “the fee for successful prosecution of [an action for

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judicial review] is a separate 25% of the backpay awarded upon reversal of any unfavorable ALJ

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decision for work before the court.” (Id. ¶ 2, Ex. 1).
Pursuant to 42 U.S.C. § 406(b), plaintiff’s counsel moves for attorney’s fees in the amount

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of $13,000 (i.e., less than 25% of Deleuse’s past-due benefits), with counsel to reimburse Deleuse

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$3,050.00 in EAJA fees previously paid by the Commissioner. Plaintiff’s counsel served Deleuse

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with the motion and supporting papers. (Dkt. 28 at 10). The Commissioner has filed a statement

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of non-opposition to the fee request. The court has not received any response or objection from

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Deleuse. The matter is deemed suitable for determination without oral argument. Civ. L.R. 7-

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United States District Court
Northern District of California

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1(b). For the reasons stated below, the motion for fees is granted.

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Section 406(b) of Title II of the Social Security Act provides that whenever a court renders

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judgment in favor of a claimant, the court may award the claimant’s counsel a reasonable

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attorney’s fee, not to exceed 25% of the past-due benefits awarded to the claimant. 42 U.S.C. §

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406(b)(1)(A). The court must review counsel’s request for fees “as an independent check” to

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ensure that the contingency fee agreement will “yield reasonable results in particular cases.”

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Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). In determining a reasonable fee award, the

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district court “must respect ‘the primacy of lawful attorney-client fee agreements,’” by “‘looking

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first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford v. Astrue, 586

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F.2d 1142, 1148 (9th Cir. 2009) (quoting Gisbrecht, 535 U.S. 789 at 793, 808). A fee based on a

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contingent-fee agreement is unreasonable and subject to reduction “if the attorney provided

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substandard representation or engaged in dilatory conduct in order to increase the accrued amount

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of past-due benefits, or if the ‘benefits are large in comparison to the amount of time counsel spent

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on the case.’” Id. (quoting Gisbrecht, 535 U.S. at 808). “The attorney bears the burden of

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establishing that the fee sought is reasonable.” Id. Additionally, a § 406(b) fee award is offset by

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any award of EAJA fees. Thus, “the claimant’s attorney must refun[d] to the claimant the amount

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of the smaller fee.” Gisbrecht, 535 U.S. at 796 (citation omitted).

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The court finds that amount of fees sought is reasonable. The fee agreement between
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Deleuse and his counsel is within the statutory ceiling set by Section 406(b), and counsel is

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requesting even less than that in fees. Deleuse’s counsel successfully prosecuted the matter before

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this court, obtaining a remand order for payment of benefits. Deleuse’s counsel and legal staff

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spent 19.3 hours on this matter, yielding an hourly rate of $673.58. (Cho Decl. ¶ 4, Ex. 3). Such a

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rate for an attorney who has been practicing Social Security law for nearly 20 years (Cho Decl. ¶

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6) is not unreasonable. See, e.g., Goodbar v. Colvin, No. 11-cv-04572 SI, 2015 WL 6674548 at

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*1 (N.D. Cal., Nov. 2, 2015) (finding an hourly rate of $772.09 for an attorney who had been

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practicing Social Security law for 13 years to be reasonable). There is no indication that counsel

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caused delay or provided substandard representation. Having reviewed the record, the court

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concludes that the requested fees are reasonable and do not constitute a windfall.

United States District Court
Northern District of California

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Based on the foregoing, Deleuse’s motion for attorney’s fees is GRANTED. The

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Commissioner is directed to certify fees under 42 U.S.C. § 406(b) in the amount of $13,000.00,

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payable to the Law Offices of Lawrence D. Rohlfing. Deleuse’s counsel is ordered to refund the

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previously awarded EAJA fees, in the amount of $3,050.00, to Deleuse.

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SO ORDERED.
Dated: September 6, 2016

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HOWARD R. LLOYD
United States Magistrate Judge

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5:12-cv-02708-HRL Notice has been electronically mailed to:
Theophous H Reagans , Jr
[e-mail]

[e-mail], [e-mail],

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Young Chul Cho

[e-mail], [e-mail]

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United States District Court
Northern District of California

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