Khaleck v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 11/3/2011 ORDERING that Pltf's 27 Motion for Attorney Fees is GRANTED. Counsel for Pltf is awarded $6,325.04 in attorney fees. Upon receipt of the $6,325.04 in attorney fees, counsel shall reimburse Pltf in the amount of $2,372.22 previously paid by the government under the EAJA. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SOM KHALECK,
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Plaintiff,
No. CIV S-09-1726 DAD
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
ORDER
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Defendant.
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Plaintiff brought this action seeking judicial review of a final administrative
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decision denying her claim for Supplemental Security Income (SSI) benefits under Title XVI of
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the Social Security Act (the Act). By order of the court filed October 7, 2010, plaintiff’s motion
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for summary judgment was granted, defendant’s cross-motion for summary judgment was
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denied, the decision of the Commissioner was reversed and the case was remanded with the
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direction to award benefits. (Doc. No. 23.) On May 16, 2011, counsel for plaintiff filed a
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motion for an award of attorney fees pursuant to 42 U.S.C. § 406(b).
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Plaintiff and her counsel at the outset entered into a 25 % contingent-fee
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agreement. Exhibit to Motion for Attorney Fees (Doc. No. 27-3) at 1. Plaintiff’s counsel now
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seeks attorney fees in the amount of $6,325.04, which represents 25 % of the retroactive
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disability benefits received by plaintiff on remand, for 27.2 hours of attorney time expended on
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this matter. According to plaintiff’s counsel, plaintiff has been provided a copy of counsel’s
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pending motion for attorney’s fees. Brewer Decl. (Doc. No. 27-4) at 2. The court’s docket
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reflects that plaintiff has filed no objection to her attorney’s fee award request. Defendant has
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filed a response, which addresses the applicable factors relating to the fee request but takes no
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position on the reasonableness of the requested fee.
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Attorneys are entitled to fees for cases in which they have successfully represented
social security claimants.
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 of the past-due benefits to which the claimant is entitled
by reason of such judgment, and the Commissioner of Social
Security may . . . 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.
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42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42
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U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing
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party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)
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(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although a attorney fee
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award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has
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standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324,
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328 (4th Cir. 1989). The goal of fee awards under § 406(b) is to provide adequate incentive to
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attorneys for representing claimants while ensuring that the usually meager disability benefits
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received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989).
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The 25% statutory maximum fee is not an automatic entitlement, and the court
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must ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09
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(“[Section] 406(b) does not displace contingent-fee agreements within the statutory ceiling;
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instead, § 406(b) instructs courts to review for reasonableness fees yielded by those
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agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must
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show that the fee sought is reasonable for the services rendered.” Id. at 807. “[A] district court
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charged with determining a reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy
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of lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then
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testing it for reasonableness.’” Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793
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& 808). The Supreme Court has identified five factors that may be considered in determining
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whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to
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reduction by the court: (1) the character of the representation; (2) the results achieved by the
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representative; (3) whether the attorney engaged in dilatory conduct in order to increase the
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accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the
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amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and
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counsel’s regular hourly billing charge for noncontingent cases. Crawford, 586 F.3d at 1151-52
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(citing Gisbrecht, 535 U.S. at 808). Below the court will consider these factors in assessing
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whether the fee requested by counsel pursuant to 42 U.S.C. § 406(b) is reasonable.
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Here, there is no indication that a reduction of fees is warranted due to any
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substandard performance by counsel. Rather, counsel is an experienced attorney who secured a
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successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any
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dilatory conduct resulting in excessive delay. The court finds that the $6,325.04 fee, which
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represents 25 % of the past-due benefits paid to plaintiff, is not excessive in relation to the
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past-due award in this case. See Motion for Fees (Doc. No. 27) at 3; Exhibit to Brewer Decl.
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(Doc. No. 27-4) at 2; Defendant’s Response (Doc. No. 28) at 1-2. In making this determination,
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the court recognizes the contingent fee nature of this case and counsel’s assumption of the risk of
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going uncompensated in agreeing to represent plaintiff on such terms. See Hearn v. Barnhart,
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262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003). Finally, counsel has submitted a detailed billing
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statement in support of the requested fee.1
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Accordingly, for the reasons stated above, the court concludes that the fees sought
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by counsel pursuant to § 406(b) are reasonable under the circumstances presented here. See
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generally Taylor v. Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4,
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2011) (granting petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue,
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No. 1:09cv0490 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending
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award of $34,500 in attorney fees pursuant to 406(b)); Logan-Laracuente v. Astrue, No. 1:07-cv-
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00983-SMS, 2010 WL 4689519, at *2 (E.D. Cal. Nov. 10, 2010) (granting petition pursuant to
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406(b) for $23,558.62 in net attorneys’ fees).
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An award of § 406(b) fees is, however, offset by any prior award of attorney’s fees
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granted under the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at
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796. Here, plaintiff’s counsel was previously awarded $2,372.22 in EAJA fees (see Doc. No. 26)
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and the award under § 406(b) must be offset by that amount.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for attorney fees (Doc. No. 27) under 42 U.S.C. § 406(b) is
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granted;
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2. Counsel for plaintiff is awarded $6,325.04 in attorney fees under § 406(b).
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The Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder of her
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withheld benefits; and
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The court would also note that a fee award of $6,325.04 for 27.2 hours of attorney time
reflects an effective hourly rate of $232.54 per hour. That is a reasonable hourly rate for the
services rendered by counsel here.
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3. Upon receipt of the $6,325.04 in attorney fees pursuant to § 406(b), counsel
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shall reimburse plaintiff in the amount of $2,372.22 previously paid by the government under the
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EAJA.
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DATED: November 3, 2011.
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DAD:6
Ddad1/orders.socsec/khaleck1726.attyfees.406b
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