Giles v. Colvin

Filing 43

ORDER granting 39 Motion for Attorney Fees. Plaintiff Tamara Giles' attorney, Marc Kalagian, is awarded attorneys' fees pursuant to 42 U.S.C. § 406(b) in the amount of $11,500.00.IT IS FURTHER ORDERED that Marc Kalagian sha ll reimburse plaintiff Tamara Giles the amount of $3,800.00 for EAJA fees previously paid by the Commissioner. IT IS FURTHER ORDERED that the hearing set for December 3, 2020 is VACATED. Signed by Magistrate Judge Brenda Weksler on 12/1/2020. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:16-cv-01604-BNW Document 43 Filed 12/01/20 Page 1 of 3

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

Tamara F. Giles,

5

Case No. 2:16-cv-01604-BNW
Plaintiff,

6
7

ORDER GRANTING MOTION FOR
ATTORNEY’S FEES

v.
Andrew Saul,

8

Defendant.

9
10

Plaintiff Tamara Giles’ attorney moves for an award of attorneys’ fees following Giles’

11

successful motion for remand. No party opposed the motion, although the defendant filed an

12

informative brief without taking a position on fees. The court grants the motion.

13

Giles entered into a contingency fee agreement with her attorney for 25% of any past-due

14

benefits awarded upon a court-ordered reversal of an unfavorable decision by an administrative

15

law judge. ECF No. 39-2. The court reversed the administrative law judge’s decision in this case

16

and remanded for further proceedings. ECF No. 31. Upon remand, the Social Security

17

Administration awarded Giles $70,470.00 in past-due benefits. ECF No. 39.

18

Under 42 U.S.C. § 406(b)(1)(A), when a claimant who is represented by counsel obtains a

19

favorable court judgment, “the court may determine and allow as part of its judgment a

20

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

21

benefits to which the claimant is entitled by reason of such judgment.” This fee is payable out of

22

the past-due benefits awarded to the claimant and not as an additional recovery from the

23

defendant. Id.

24

Although other fee-shifting schemes resort to use of the “lodestar” method to calculate a

25

reasonable attorney’s fee, § 406(b) is not a fee-shifting statute. Gisbrecht v. Barnhart, 535 U.S.

26

789, 802 (2002). The statute requires the attorney’s fee be taken from the past-due benefits

27

awarded to the claimant and not as an additional recovery from the defendant. Id. Thus, § 406(b)

28

Case 2:16-cv-01604-BNW Document 43 Filed 12/01/20 Page 2 of 3

1

“does not displace contingent-fee agreements as the primary means by which fees are set for

2

successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for

3

court review of such arrangements as an independent check, to assure that they yield reasonable

4

results in particular cases.” Id. at 807. The only statutorily-imposed constraint is that the fee

5

agreement cannot “provide for fees exceeding 25 percent of the past-due benefits.” Id. (citing

6

§ 406(b)(1)(A)).
Consequently, in Social Security cases, the court begins with the contingency fee

7
8

agreement and then “tests it for reasonableness.” Id. at 808. “[T]he question is whether the

9

amount need[s to] be reduced, not whether the loadstar amount should be enhanced.” Crawford v.

10

Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). The court may reduce the fee award

11

“based on the character of the representation and the results the representative achieved.”

12

Gisbrecht, 535 U.S. at 808. Thus, the court “may properly reduce the fee for substandard

13

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

14

Crawford, 586 F.3d at 1151. The court may “consider the lodestar calculation, but only as an aid

15

in assessing the reasonableness of the fee.” Id. (emphasis omitted).
The attorney seeking the fee award bears the burden of establishing the fee sought is

16
17

reasonable. Id. at 1148. The award of fees under § 406(b) lies within the court’s discretion. Id. at

18

1147.

19

Giles’ attorney requests less than the full twenty-five percent of Plaintiff’s past due

20

benefits. He requests $11,500.00. ECF No. 39. He presents evidence that counsel spent 19.8 hours

21

on the case and that paralegals spent 1.9 hours on the case. Id. There is no evidence of

22

substandard performance. Rather, counsel obtained a favorable result in the form of a remand and

23

subsequent award of substantial past benefits. There is no evidence counsel caused any delay to

24

increase the contingent amount. Additionally, the fees are not excessively large in relation to the

25

past-due benefits obtained for the claimant. Plaintiff’s attorney, therefore, has met his burden of

26

establishing a reasonable fee award in the amount of $11,500.00.

27
28
Page 2 of 3

Case 2:16-cv-01604-BNW Document 43 Filed 12/01/20 Page 3 of 3

1

I previously granted the parties’ stipulation to award Giles $3,800.00 in attorneys’ fees

2

under the Equal Access to Justice Act (EAJA). ECF No. 36. Giles’ attorney agrees he will credit

3

this amount against any fee awarded under 42 U.S.C. § 406(b). ECF No. 3 at 7; see also

4

Gisbrecht, 535 U.S. at 796 (stating that a claimant may obtain fee awards under both § 406(b) and

5

the EAJA but the attorney must refund the smaller fee amount to the claimant).

6

IT IS THEREFORE ORDERED that the motion for attorney’s fees (ECF No. 39) is

7

GRANTED. Plaintiff Tamara Giles’ attorney, Marc Kalagian, is awarded attorneys’ fees pursuant

8

to 42 U.S.C. § 406(b) in the amount of $11,500.00.

9
10

IT IS FURTHER ORDERED that Marc Kalagian shall reimburse plaintiff Tamara Giles
the amount of $3,8000.00 for EAJA fees previously paid by the Commissioner.
$3,800.00

11

IT IS FURTHER ORDERED that the hearing set for December 3, 2020 is VACATED.

12

DATED: December 1, 2020.

13
14
15

BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
Page 3 of 3