Speciale v. Colvin

Filing 25

ORDER GRANTING 22 MOTION FOR AUTHORIZATION OF ATTORNEY'S FEES, PURSUANT TO 42 U.S.C. § 406(b). Signed by Judge Beth Labson Freeman on 3/28/2019.(blflc2S, COURT STAFF) (Filed on 3/28/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DON R SPECIALE,
Plaintiff,

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v.

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NANCY A. BERRYHILL,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-01659-BLF
ORDER GRANTING MOTION FOR
AUTHORIZATION OF ATTORNEY’S
FEES, PURSUANT TO 42 U.S.C. §
406(b)
[Re: ECF 22]

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In this Social Security appeal, the Court granted in part Plaintiff Don R. Speciale’s motion

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for summary judgment and remanded the case for further agency proceedings. See ECF 20. The

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Court then entered judgment based on that order. ECF 21. On remand, Plaintiff was awarded

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past-due benefits in the amount of $114,145. See ECF 22-5 at 3. The Social Security

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Administration withheld $6,000 of Plaintiff’s past-due benefits to ensure there were sufficient

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funds available to pay any attorneys’ fees award, and the Administrative Law Judge approved this

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amount for the time Plaintiff’s counsel (“Counsel”) spent representing Plaintiff before the Agency.

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See ECF 22 at 1; ECF 22-1 at 3; ECF 22-5 at 3. Counsel, who represented Plaintiff in both the

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administrative and judicial proceedings, has filed an application for an award of additional

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attorneys’ fees of $10,879.25. See Mot., ECF 22. The application is made pursuant to 42 U.S.C. §

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406(b) and plaintiff and counsel’s contingent-fee agreement.

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Having reviewed Counsel’s motion and the Government’s response, the Court finds that

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the fees sought are reasonable, and therefore GRANTS the motion in the amount of $10,879.25,

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which, when combined with the $6,000 already awarded, is 14.79%1 of the past-due benefits

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Counsel calculates that the total fee request is 21.8% because he includes $8,000 in estimated
EAJA fees that have been “credited to the client,” even though EAJA fees were not approved in

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award of $114,145.
I.

LEGAL STANDARD

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Section 406(b) of the Social Security Act governs Counsel’s request for fees. Under that

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provision, “[w]henever a court renders a judgment favorable to a claimant under this subchapter

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who was represented before the court by an attorney, the court may determine and allow as part of

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its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the

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past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U.S.C. §

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406(b)(1)(A). “A court may award such a fee even if the court’s judgment did not immediately

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result in an award of past-due benefits; where the court has rendered a judgment favorable to a
claimant by reversing an earlier determination by an ALJ and remanding for further consideration,

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United States District Court
Northern District of California

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the court may calculate the 25% fee based upon any past-due benefits awarded on remand.”

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Butler v. Colvin, No. 3:14-CV-02050-LB, 2017 WL 446290, at *1 (N.D. Cal. Feb. 2, 2017).

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“[T]he fee is paid by the claimant out of the past-due benefits awarded; the losing party is not

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

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Attorneys specializing in social security work “routinely enter into contingent-fee

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agreements specifying that the fee will be 25% of any past-due benefits recovered, thus providing

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the attorney the statutory maximum of fees if the representation is successful.” Id. The Supreme

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Court has held that Ҥ 406(b) does not displace contingent-fee agreements as the primary means

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by which fees are set for successfully representing Social Security benefits claimants in court.”

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Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). However, the district court must review

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contingent-fee agreements “as an independent check, to assure that they yield reasonable results in

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particular cases.” Id. “[T]he district court must first look to the fee agreement and then adjust

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downward if the attorney provided substandard representation or delayed the case, or if the

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requested fee would result in a windfall.” Crawford, 586 F.3d at 1151.

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this matter. See ECF 22 at 2; ECF 22-1 at 3. It is unclear why Counsel includes the $8,000
amount in his calculations, but the Court’s analysis applies equally whether the requested
percentage is 14.79% or 21.8%.
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II.

DISCUSSION
Pursuant to the standards set forth above, the Court begins its analysis by looking to the

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contingent fee agreement between Counsel and Plaintiff. See ECF 22-6. The agreement provides

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that, subject to approval of the court, Plaintiff will pay Counsel “an amount equal to twenty-five

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percent (25%) of the past-due benefits” recovered. Id. at 1. Accordingly, the agreement is within

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the 25% cap set forth in § 406(b). Here, Counsel requests only 14.79%. Nothing in the record

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suggests that Counsel’s performance was substandard or that Counsel delayed proceedings in an

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effort to increase the amount of fees awarded. Counsel obtained an excellent result for Plaintiff,

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comprising a substantial award of past-due benefits. See ECF 22-5 at 3. The fee award in
question, $10,879.25, is consistent with other fee awards in similar cases in this district. See, e.g.,

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United States District Court
Northern District of California

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Eckert v. Berryhill, No. 15-CV-04461-JCS, 2017 WL 3977379, at *3 (N.D. Cal. Sept. 11, 2017)

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(awarding $16,566.25 in fees following an award of $66,265 in past-due benefits); Devigili v.

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Berryhill, No. 15-CV-02237-SI, 2017 WL 2462194, at *2 (N.D. Cal. June 7, 2017) (awarding

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$15,278.00 in fees following an award of $76,391.00 in past-due benefits).
The Government’s response to the motion states that the Commissioner takes no position

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on the reasonableness of Counsel’s request for fees, and that the Commissioner submits a response

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pursuant to her role “resembling that of a trustee” for Plaintiff. ECF 24 at 1, 4. The Government

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notes that based on Counsel’s representation that he spent 32.5 hours on the case, a fee award in

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the amount requested would result in an effective hourly rate of approximately $335. The

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Government cites Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1036-37 (N.D. Cal. 2003) for the

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proposition that appropriate effective hourly rates for social security cases range from $187.55 to

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$694.44.
Having considered the record in this case and the applicable law, the Court is satisfied that

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Counsel’s request for attorneys’ fees under § 406(b) is reasonable. Because the amount withheld

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by the Commissioner is not sufficient to satisfy the $10,879.25 fee award, Plaintiff shall pay the

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award from the trust he created for this purpose pending approval of this motion. ECF 22-2.

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III.

ORDER
Counsel’s motion for attorney’s fees under § 406(b) is GRANTED in the amount of

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$10,879.25, to be paid by Plaintiff.
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IT IS SO ORDERED.
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Dated: March 28, 2019
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______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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