Espinoza v. Saul

Filing 31

MEMORANDUM DECISION AND ORDER granting 27 Plaintiff's MOTION for Attorney Fees. Signed by Magistrate Judge Daphne A. Oberg on 1/6/2025. (alf)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
STEPHEN E.,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER GRANTING PETITION FOR 406(b)
FEES
(DOC. NO. 27)

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

Case No. 1:19-cv-00062
Magistrate Judge Daphne A. Oberg

Defendant.

Plaintiff Stephen E.’s1 attorney, Natalie Bolli-Jones (“Counsel”), has filed a
Petition and Memorandum for 406(b) Fees. 2 Counsel seeks an award of attorney’s fees
pursuant to 42 U.S.C. § 406(b) in the amount of $19,221.68. This figure represents
twenty-five percent of the past-due social security benefits awarded to her client, Mr.
E.—minus $7,200.00 paid to his attorneys for work done at the administrative level after
the court remanded this case to the Commissioner of Social Security for further
proceedings. The Commissioner does not oppose the petition. 3 For the reasons
explained below, the court grants the petition.

1 Pursuant to best practices in the District of Utah addressing privacy concerns in court

orders in certain cases, including social security cases, the court refers to Plaintiff by his
first name and last initial only.

2 (“Pet.,” Doc. No. 27.)
3 (See Comm’r’s Resp. to Pl.’s 406(b) Mot., Doc. No. 29.)

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BACKGROUND
On May 29, 2019, Mr. E. hired Counsel, who is an attorney with the Law Office of
Jay Barnes, on a contingent-fee basis to represent him in his claims against the Social
Security Administration (“SSA”). 4 In the written contingent-fee agreement, Mr. E. and
Counsel agreed that the contingency fee would be twenty-five percent of the past-due
benefits awarded to Mr. E. 5
Counsel filed this action for judicial review of the SSA’s denial of benefits on June
24, 2019. 6 On September 10, 2020, the court remanded the case to the Commissioner
for further proceedings. 7 Mr. E. then sought $4,800.00 in attorney’s fees under the
Equal Access to Justice Act (“EAJA”). 8 The court granted the motion and awarded Mr.
E. the requested amount of $4,800.00 in EAJA fees, payable to counsel. 9
After the case was remanded, the SSA awarded Mr. E. $105,686.70 in past-due
benefits. 10 Twenty-five percent of this award is $26,421.68. 11 The SSA paid $7,200.00

4 (See Aff. of Natalie Bolli-Jones in Supp. of [Pet.] for 406(b) Fees (“Bolli-Jones Aff.”) ¶¶

1, 3, Doc. No. 27-1.)

5 (See Ex. A to Bolli-Jones Aff., Fee Agreement, Doc. No. 27-2.)
6 (See Compl., Doc. No. 3.)
7 (See J. in a Civ. Action, Doc. No. 24.)
8 (See Stip. For Award of Att’y Fees Pursuant to the Equal Access to Justice Act, Doc.

No. 25.)

9 (Order for Payment of Att’y Fees Pursuant to the Equal Access to Justice Act, Doc.

No. 26.)

10 (Bolli-Jones Aff. ¶ 4, Doc. No. 27-1; Ex. C to Bolli-Jones Aff, Notice of Award 3, Doc.

No. 27-4.)

11 (Bolli-Jones Aff. ¶ 4, Doc. No. 27-1.)

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to Mr. E.’s attorneys for work done at the administrative level and withheld the
remaining $19,221.68 pending the outcome of this fee petition. 12
On September 4, 2024, counsel filed this petition asking the court to authorize,
pursuant to 42 U.S.C. § 406(b), payment of $19,221.68 in fees for her representation of
Mr. E. before this court. 13 This amount represents twenty-five percent of the past-due
benefits minus the administrative fee award of $7,200.00. 14 The itemized statement
Counsel submitted indicates she spent 26.9 hours working on Mr. E.’s case before this
court. 15 Counsel further indicates that the $4,800.00 EAJA fee award will be refunded
to Mr. E. upon payment of the requested fee amount under 42 U.S.C. § 406(b). 16
The petition states that Counsel provided a copy of the petition and all supporting
papers to Mr. E. and notified him of his right to object. 17 Mr. E. has not objected to the
fee request. The Commissioner filed a response taking no position on Counsel’s
petition. 18
ANALYSIS
Section 406(b) provides that an attorney who successfully represents a Social
Security claimant may be awarded “a reasonable fee . . . not in excess of 25 percent of

12 (See id.; Ex. C to Bolli-Jones Aff, Notice of Award 3–4, Doc. No. 27-4.)
13 (Pet., Doc. No. 27.)
14 (Bolli-Jones Aff. ¶ 7, Doc. No. 27-1.)
15 (Ex. B to Bolli-Jones Aff., Itemized Billing Statement, Doc. No. 27-3.)
16 (Bolli-Jones Aff. ¶ 6, Doc. No. 27-1.)
17 (Pet. 2, Doc. No. 27.)
18 (See Comm’r’s Resp. to Pl.’s 406(b) Mot., Doc. No. 29.)

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the total of the past-due benefits.” 19 In Gisbrecht v. Barnhart, 20 the Supreme Court
indicated that section 406(b) requires district courts to review contingent-fee
agreements “as an independent check, to assure that they yield reasonable results in
particular cases.” 21 The Court noted that within the twenty-five percent boundary set by
Congress, “the attorney for the successful claimant must show that the fee sought is
reasonable for the services rendered.”22 District courts must assess the
reasonableness of the contingent-fee agreement and may reduce the amount of fees
where warranted. 23
The Court provided several examples of what would cast doubt on the
reasonableness of the contingent-fee agreement and merit a reduced fee. First, the fee
award may be reduced “based on the character of the representation and the results the
[attorney] achieved.”24 Second, “[i]f the attorney is responsible for delay . . . a reduction
is in order so that the attorney will not profit from the accumulation of benefits during the
pendency of the case in court.”25 Third, “[i]f the benefits are large in comparison to the

19 42 U.S.C. § 406(b)(1)(A).
20 535 U.S. 789 (2002).
21 Id. at 807.
22 Id.
23 Id. at 808.
24 Id.
25 Id.

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amount of time counsel spent on the case, a downward adjustment is similarly in
order.” 26
Here, Counsel’s fee request does not exceed the twenty-five percent threshold.
Nevertheless, pursuant to Gisbrecht, the court examines whether the fee request is
reasonable. First, based on the record in this case, the character of Counsel’s
representation of Mr. E. and the results achieved were not substandard. Counsel’s
work before this court resulted in remand of the case to the Commissioner, and a
significant award of past-due benefits for Mr. E. at the administrative level. Second,
there is no indication Counsel delayed pursuing Mr. E.’s claims. Counsel filed this case
less than a month after being retained and complied with all briefing deadlines.
Next, Counsel’s fee request is not unreasonable compared to the amount of time
spent on the case. Where Counsel spent 26.9 hours on this case, her fee request of
$19,221.68 translates to an hourly rate of $714.56. 27 This is within the range which
courts have found reasonable—though it approaches the high end of that range. 28 This
hourly rate is also reasonable considering Counsel assumed the risk of not receiving
any fees under the contingent-fee agreement. 29 Finally, Counsel’s petition is
unopposed—further indicating the requested fees are reasonable and warranted.

26 Id.
27 (See Pet. 3, Doc. No. 27; Itemized Billing Statement, Doc. No. 27-3.)
28 See, e.g., Gulbransen v. Colvin, 2015 U.S. Dist. LEXIS 55176, at *4 (D. Utah Apr. 27,

2015) (unpublished) (granting a § 406(b) fee request resulting in an hourly rate of
$862.88, an “amount [that] is on the high-end of what the Court would find to be
reasonable,” where there was no other basis to find the fee unreasonable).

29 See Faircloth v. Barnhart, 398 F. Supp. 2d 1169, 1174 (D.N.M. 2005) (finding

§ 406(b) attorney fee award translating to an hourly rate of $510.25 reasonable,
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CONCLUSION
For the reasons explained above, the requested fee is reasonable under the
contingent-fee agreement between Counsel and Mr. E. Therefore, the court authorizes
Counsel to receive a § 406(b) fee award of $19,221.68, which represents twenty-five
percent of Mr. E.’s past-due benefits, less $7,200.00 paid to his attorneys for work done
at the administrative level. In addition, because fees have been awarded under both
§ 406(b) and the EAJA, Counsel must refund the lesser of the two fees to Mr. E. (which
in this case, are those fees awarded under the EAJA). 30
Accordingly, the court orders as follows:
1.

Counsel’s Petition for 406(b) Fees31 is granted. Counsel is awarded

§ 406(b) fees in the amount of $19,221.68, payable to Natalie Bolli-Jones.
2.

Counsel must refund to Mr. E. the previous EAJA fee award of $4,800.00

upon payment of the § 406(b) award.
DATED this 6th day of January, 2025.
BY THE COURT:

________________________________
Daphne A. Oberg
United States Magistrate Judge

particularly “when that fee is considered in conjunction with a Social Security lawyer’s
risk of loss”).
30 See Gisbrecht, 535 U.S. at 796 (recognizing that “[f]ee awards may be made under

both [EAJA and § 406(b)], but the claimant’s attorney must refund to the claimant the
amount of the smaller fee.” (internal quotation marks and alteration omitted)).
31 (Doc. No. 27.)

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