Franco v. Colvin

Filing 29

ORDER GRANTING MOTION FOR ATTORNEYS FEES re 25 Motion for Attorney Fees. Signed by Judge Barry Ted Moskowitz on 6/20/2019. (sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15-cv-2752-BTM-WVG
JOHN FRANCO,
Plaintiff,

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ORDER GRANTING MOTION FOR
ATTORNEY’S FEES

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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[ECF No. 25]

Defendant.

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Pending before the Court is Plaintiff John Franco’s motion for attorney’s

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fees pursuant to 42 U.S.C. § 405(g). (ECF No. 25.) For the reasons set forth

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below, the Court grants the motion.
BACKGROUND

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On December 8, 2015, pursuant to 42 U.S.C. § 405(g) and 1383(c),

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Plaintiff filed this action seeking review of the final decision by the Acting

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Commissioner of Social Security (the Commissioner) to deny his social security

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benefits. (ECF No. 1.)

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On February 13, 2017, the Court granted Plaintiff’s Motion for Summary

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Judgment, denied Defendant’s Motion for Summary Judgment, and remanded
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this action for further administrative proceedings. (ECF No. 19.) The Court also

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granted attorney’s fees under the EAJA in the amount of $2,800. (ECF No. 24.)

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On remand, the Administrative Law Judge (ALJ) found Plaintiff disabled as

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of August 16, 2016, and the Commissioner awarded Plaintiff $36,622 in past-due

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benefits.1 (ECF No. 25-3.)
Plaintiff’s counsel, Marc V. Kalagian, requests compensation for a total of

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16.7 hours before this Court. Under a contingent-fee agreement, Plaintiff agreed

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to pay counsel up to 25% of any past-due benefits award, which in this case

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would be $9,155.50. Counsel now seeks $9,000 under 42 U.S.C. § 406(b),

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which provides for a 25% cap on fees an attorney may charge a Social Security

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claimant for representation in federal court under a contingent-fee motion. See

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42 U.S.C. § 406(b)(1)(A).

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DISCUSSION

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This Court determines the reasonableness of the requested fees pursuant

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to 42 U.S.C. § 406(b)(1)(A), which provides that “[w]henever a court renders a

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judgment favorable to a claimant . . . who was represented before the court by an

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attorney, the court may determine and allow as part of its judgment a reasonable

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fee for such representation, not in excess of 25% of the total of the past-due

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

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§ 406(b)(1)(A)

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The Ninth Circuit and United States Supreme Court permit district courts to

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reduce requested fee awards if the attorney’s fees are not in proportion to time

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spent on the case, so long as the Court respects the contingent nature of the

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representation and uses the lodestar as an aid rather than a starting point in

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ascertaining reasonableness. See Crawford v. Astrue, 586 F.3d 1142, 1151 (9th

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The award letter did not provide a cumulative total of past-due benefits, but rather indicated benefits due for
various periods. Based on the indicated 25% withheld for potential payment of attorney’s fees, $36,622 is the
estimated total of Plaintiff’s past due benefits.
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Cir. 2009) (en banc) (“The court may properly reduce the fee for substandard

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performance, delay, or benefits that are not in proportion to the time spent on the

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case.”) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002)).

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The Court concludes the requested fee of $9,000 would not be a windfall.

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None of the Gisbrecht factors weigh in favor of a reduction, and counsel

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requested 24.6% of past-due-benefits, which falls below the 25% statutory cap.

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The Court further concludes that the requested $9,000 fee is reasonable as

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compensation for the risk borne by contingency fee attorneys in social security

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cases. See Crawford, 586 F.3d at 1152 (noting that contingency fees in part

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compensate for “the risk that no benefits would be awarded or that there would

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be a long court or administrative delay in resolving the cases”).

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CONCLUSION

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The Court GRANTS the motion for attorney’s fees (ECF No. 25). The

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Court awards attorney’s fees to Marc V. Kalagian in the amount of $9,000. Upon

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receipt of the $9,000, counsel is ordered to reimburse Plaintiff $2,800, the

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amount paid by the government under the EAJA.

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IT IS SO ORDERED.
Dated: June 20, 2019

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