Mac Ewen v. Astrue
Filing
34
ORDER granting 29 Plaintiff's Counsel's Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b). Signed by Judge Janis L. Sammartino on 10/18/2016. (kcm)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
DALE A. MACEWEN,
Case No.: 10-CV-1263 JLS (MDD)
Plaintiff,
12
13
14
ORDER GRANTING PLAINTIFF’S
COUNSEL’S MOTION FOR
ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
15
Defendant.
16
(ECF No. 29)
17
Presently before the Court is Plaintiff Dale A. MacEwen’s Counsel Shanny J. Lee
18
(“Counsel”)’s Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b). (ECF No. 29.)
19
Also before the Court is Defendant’s Response to the Motion for Attorney Fees. (ECF No.
20
32.) Having considered the parties’ arguments and the law, the Court GRANTS Counsel’s
21
Motion for Fees.
22
BACKGROUND
23
On June 11, 2010, Plaintiff filed a complaint pursuant to Section 405(g) of the Social
24
Security Act. (R. & R. at 1, ECF No. 24.) Plaintiff asked the Court to review the final
25
decision of the Commissioner of the Social Security Administration denying Plaintiff’s
26
claim for supplemental security income benefits and social security disability insurance
27
benefits. Id. Counsel filed the complaint on Plaintiff’s behalf pursuant to a signed
28
contingency-fee agreement providing that Counsel, if successful, would receive 25% of the
1
10-CV-1263 JLS (MDD)
1
final award. (Pl.’s Mot. for Att’y Fees, Lee Decl. ¶ 8; id., Ex. A, at 1.) On December 10,
2
2010, Plaintiff filed a Motion for Summary Judgment regarding his Section 405(g) claim,
3
and on March 2, 2011, Defendant filed a Cross Motion for Summary Judgment and
4
Opposition to Plaintiff’s Motion for Summary Judgment. (R. & R. at 1.) On March 11,
5
2011, Plaintiff filed a Reply to Defendant’s Response. (Id.)
6
On September 7, 2011, Magistrate Judge Mitchell D. Dembin issued an R. & R.
7
finding that the Administrative Law Judge (“ALJ”) committed legal error both by rejecting
8
the opinion of Plaintiff’s treating surgeon, Dr. Frey, and by finding that Plaintiff was not
9
credible. (Id. at 11.) Magistrate Judge Dembin recommended that both parties’ motions
10
for summary judgment be denied and the case remanded for further proceedings. (Id. at
11
12.) Defendant did not object to the R. & R. and on November 2, 2011, the Court adopted
12
Magistrate Judge Dembin’s R. & R. in its entirety. (ECF No. 25.)
13
Prior to remand, the parties jointly moved for attorney fees pursuant to the Equal
14
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $5,800, “subject to
15
any offset allowed under the United States Department of Treasury’s Offset Program.”
16
(ECF No. 26.) The Court granted the motion, (ECF No. 27), but no money was ultimately
17
paid to Plaintiff or Counsel because the government determined that Mr. MacEwen owed
18
a pre-existing, non-tax, federal debt that equaled or exceeded the amount of the EAJA
19
award. (Pl.’s Mot. for Att’y Fees, Lee Decl. ¶ 8.)
20
On remand, ALJ James S. Carletti issued a decision partially favorable to Mr.
21
MacEwen, and the Appeals Council issued a fully favorable decision several months later.
22
(Id. ¶¶ 9–10.) In March of 2016, the Social Security Administration (“SSA”) issued a
23
Notice of Award letter to Mr. MacEwen, noting that $21,808.50 of the award had been set
24
aside for potential payment to Mr. MacEwen’s representative as attorney fees. (Id. ¶ 11.)
25
Counsel now moves under 42 U.S.C. § 406(b) for attorney fees in the amount of
26
$21,808.50, as both specified in the contingency agreement and set aside by the SSA.
27
///
28
///
2
10-CV-1263 JLS (MDD)
1
LEGAL STANDARD
Section 406(b) governs an attorney’s right to recover fees in a successful Social
2
3
Security case.3 The U.S. Supreme Court has held that,
4
11
[m]ost plausibly read, . . . § 406(b) does not displace contingentfee agreements as the primary means by which fees are set for
successfully representing Social Security benefits claimants in
court. Rather, § 406(b) calls for court review of such
arrangements as an independent check, to assure that they yield
reasonable results in particular cases. Congress has provided one
boundary line: Agreements are unenforceable to the extent that
they provide for fees exceeding 25 percent of the past due
benefits. . . . Within the 25 percent boundary, . . . the attorney
for the successful claimant must show that the fee sought is
reasonable for the services rendered.
12
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (footnotes and citation omitted). Thus, a
13
district court should first look to the contingency-fee agreement and then test it for
14
reasonableness. Id. at 808.
5
6
7
8
9
10
15
The Supreme Court has instructed that a reduction of the fee award may be
16
appropriate “based on the character of the representation and the results the representative
17
achieved.”
18
reasonableness of a fee award a Court “may properly reduce the fee for substandard
19
performance, delay, or benefits that are not in proportion to the time spent on the case.”
Id.
The Ninth Circuit subsequently explained that when analyzing the
20
21
3
22
23
24
25
26
27
Section 406(b)(1)(A) of title 42 of the United States Code provides:
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 past-due benefits to
which the claimant is entitled by reason of such judgment, and the
Commissioner of Social Security may, notwithstanding the provisions of
section 405(i) of this title, but subject to subsection (d) of this section,
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. In case of any such
judgment, no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
28
3
10-CV-1263 JLS (MDD)
1
Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (citing Gisbrecht, 535 U.S. at
2
808). Further, the Supreme Court has explicitly provided that,
3
[i]n this regard, the court may require the claimant’s attorney to
submit, not as a basis for satellite litigation, but as an aid to the
court’s assessment of the reasonableness of the fee yielded by the
fee agreement, a record of the hours spent representing the
claimant and a statement of the lawyer’s normal hourly billing
charge for noncontingent-fee cases.
4
5
6
7
8
Gisbrecht, 535 U.S. at 808; see also Crawford, 586 F.3d at 1151. It is important that the
9
Court assess the reasonableness of the requested fees because, “while the attorney’s
10
compensation must be sufficient to encourage members of the bar to undertake
11
representation of disability claimants, the disability award, from which the attorney’s fee
12
is paid, is normally an already-inadequate stipend for the support and maintenance of the
13
claimant and his dependents.” Starr v. Bowen, 831 F.2d 872, 873 (9th Cir. 1987) (quoting
14
MacDonald v. Weinberger, 512 F.2d 144, 146–47 (9th Cir. 1975)).
15
The EAJA also permits an attorney to receive fees for successful Social Security
16
representations.4 See Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1216–17 (9th
17
Cir. 2012). Fees awarded pursuant to the EAJA are paid by the government rather than the
18
claimant. Id. at 1218. Accordingly, while “[f]ee awards may be made under both
19
prescriptions, . . . the claimant’s attorney must ‘refun[d] to the claimant the amount of the
20
smaller fee.’” Gisbrecht, 535 U.S. at 796 (quoting Act of Aug. 5, 1985, Pub. L. No. 99-
21
80, § 3, 99 Stat. 186) (second alteration in original).
22
23
24
25
26
27
28
4
Pursuant to the EAJA:
[A] court shall award to a prevailing party other than the United States fees
and other expenses . . . incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review of agency
action, brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the position of the
United States was substantially justified or that special circumstances make
an award unjust.
28 U.S.C. § 2412(d)(1)(A).
4
10-CV-1263 JLS (MDD)
1
ANALYSIS
2
Although usually an EAJA award that is smaller than a related § 406(b) award would
3
be refunded to a plaintiff by their counsel, in the present case neither Counsel nor Plaintiff
4
received the EAJA award due to the government’s assessing the award against Plaintiff’s
5
outstanding debt. Because the purpose of offsetting the awards is to ensure “the claimant
6
receives 100 percent of the past-due benefits,” Gisbrecht, 535 U.S. at 796, there is no
7
reason here to lower Counsel’s § 406(b) fee award even though EAJA fees were technically
8
“awarded.” Plaintiff received the benefit of the EAJA award by having his debt lowered,
9
and Counsel never received any compensation from the award. Accordingly, the Court
10
concludes that the EAJA award should not be deducted from the § 406(b) award.
11
Because the § 406(b) award at issue was derived from Counsel and Plaintiff’s 25%
12
contingency-fee agreement, the award is within the statutory boundary. 42 U.S.C. §
13
406(b)(1)(A); Gisbrecht, 535 U.S. at 807. Further, the Court concludes that none of the
14
reasons for reducing a fee award identified by the Crawford court are applicable in the
15
present case. Counsel obtained a favorable judgment for Plaintiff and the record presents
16
no indication of delay. The only remaining consideration is whether the benefits secured
17
by Counsel are in proportion to the time spent on the case.
18
“Since Gisbrecht was handed down by the Supreme Court, the district courts
19
generally have been deferential to the terms of contingency fee contracts in § 406(b) cases,
20
accepting that the resulting de facto hourly rates may exceed those for non contingency-
21
fee arrangements.” Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003)
22
(collecting cases). Further, contingency-fee arrangements expose an attorney to the
23
inherent “risk of receiving nothing for his time and effort” if the plaintiff is unsuccessful.
24
Id.
25
In the present case, Counsel spent 35.2 hours litigating the district court appeal, (Pl.’s
26
Mot. for Att’y Fees, Lee Decl. ¶ 7); assessed against the proposed fee award, this amounts
27
to an hourly rate of $620 per hour. While such an hourly rate is on the higher end charged
28
for social security appeals, the Court nonetheless concludes that the fee is reasonable in the
5
10-CV-1263 JLS (MDD)
1
present case. Counsel has fourteen years of experience in the field of social security law
2
and here secured a favorable outcome in Plaintiff’s district court appeal, ultimately
3
resulting in a fully favorable judgment by the SSA Appeals Council. (Id. ¶¶ 2, 9, 10.)
4
Further, fees within this general range have been previously awarded and upheld within
5
the Ninth Circuit. See, e.g., Crawford, 586 F.3d at 1153 (Clifton, J., concurring in part and
6
dissenting in part) (noting that majority ordered payments in underlying cases that equated
7
to $519, $875, and $902 hourly rates). Finally, Counsel took a non-negligible risk in
8
accepting the present case. There were cross-motions for summary judgment during the
9
district court appeal, resulting in a twelve-page Report and Recommendation by Magistrate
10
Judge Dembin, (R. & R., ECF No. 24), and upon remand to the SSA Plaintiff still was not
11
awarded a fully favorable decision until the Appeals Council further reviewed the ALJ’s
12
fourteen-page decision addressing nine pages worth of exhibits, (compare Notice of
13
Decision—Partially Favorable, ECF No. 29-5, with Notice of Appeals Council Decision
14
Fully Favorable, ECF No. 29-6). In sum, this was not a formulaic case, and Counsel’s
15
representation was adequate under the circumstances.
16
CONCLUSION
17
In light of the foregoing, the Court concludes that Counsel’s fee request is reasonable
18
and therefore GRANTS Counsel’s Motion for Attorney Fees. The Court awards fees in
19
the amount of $21,808.50.
20
21
IT IS SO ORDERED.
Dated: October 18, 2016
22
23
24
25
26
27
28
6
10-CV-1263 JLS (MDD)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?