Sizelove v. Barnhart
Filing
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ORDER GRANTING 32 MOTION FOR ATTORNEYS' FEES PURSUANT TO 42 U.S.C. §406(b). Signed by Judge Jeremy Fogel on 8/24/2012. (jflc2, COURT STAFF) (Filed on 8/24/2012)
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**E-Filed 8/24/2012**
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
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United States District Court
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SAN JOSE DIVISION
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Plaintiff,
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Case No. 5:05-cv-04533 JF
DELBERT SIZELOVE,
ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES PURSUANT TO 42
U.S.C. § 406(b)
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
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Defendant.
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Plaintiff’s counsel seeks an award of attorneys’ fees pursuant to 42 U.S.C. § 406(b). For the
reasons discussed below, the motion will be granted.
I. BACKGROUND
On November 7, 2005, Plaintiff Delbert Sizelove (“Sizelove”) filed a complaint in this Court
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challenging the Commissioner’s denial of Supplemental Security Income (“SSI”) benefits. Dkt.
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Entry 1. On March 29, 1997, this Court granted in part Sizelove’s motion for summary judgment
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and remanded the matter to the Commissioner for further proceedings. Dkt. Entry 25. On February
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13, 2008, an Administrative Law Judge (“ALJ”) issued a favorable decision finding Sizelove
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disabled as of January 21, 2003 and entitled to a period of SSI benefits. Mot. Exh. A. As a result of
Case No. 5:05-cv-04533 JF
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. § 406(b)
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that decision, Sizelove became entitled to retroactive benefits in the amount of $52,259. Mot. Exh.
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B.
On December 22, 2011, Sizelove’s attorney, Harvey Sackett, filed a motion for attorneys’
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fees pursuant to 42 U.S.C. § 406(b). Dkt. Entry 32. The Commissioner filed a response on January
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4, 2012. Dkt. Entry 34. The matter thereafter was submitted without oral argument. See Civ. L.R.
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7-1(b).
II. DISCUSSION
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“Attorneys handling social security proceedings may seek fees for their work under both the
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EAJA and the SSA.[1]” Cantrell v. Astrue, 639 F. Supp. 2d 1033, 1035 (N.D. Cal. 2009). “While
For the Northern District of California
United States District Court
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the government pays an award pursuant to the EAJA, an award pursuant to § 406 of the SSA is paid
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out of a successful claimant's past-due benefits.” Id. If an attorney is awarded fees under both the
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EAJA and § 406, the attorney must refund to the claimant the amount of the EAJA award up to the
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point that the claimant receives one hundred percent of the past-due benefits. Gisbrecht v. Barnhart,
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535 U.S. 789, 796 (2002).
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Section 406 provides in relevant part that, “Whenever a court renders a judgment favorable
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to a claimant under this subchapter who was represented before the court by an attorney, the court
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may determine and allow as part of its judgment a reasonable fee for such representation, not in
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excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason
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of such judgment.” 42 U.S.C. § 406(b)(1)(A). Even when the fees sought are within the twenty-
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five percent statutory maximum, the attorney must show that the proposed award “is reasonable for
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the services rendered.” Gisbrecht, 535 U.S. at 807.
The Court looks first to the contingent-fee agreement, then determines whether a reduction
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of the agreed-upon fees may be appropriate. Id. at 808. Circumstances to be considered include
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whether the attorney is responsible for a delay in the proceedings, whether the past-due benefits are
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large in comparison to the amount of time counsel spent on the case, and the attorney’s normal
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hourly billing charge for noncontingent-fee cases. Id.
Sizelove entered into a contingent-fee agreement under which he agreed to pay Mr. Sackett
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Social Security Act.
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Case No. 5:05-cv-04533 JF
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. § 406(b)
Mot. Exh. C. As noted above, Sizelove has been awarded past-due benefits in the amount of
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$52,259. Mot. Exh. B. Mr. Sackett seeks an award of twenty-five percent of this amount, or
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$13,064.75. The Court concludes that this amount is reasonable. Mr. Sackett is a very experienced
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attorney who represents that he has practiced exclusively in the area of Social Security law for more
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than thirty years. He spent 32.05 hours preparing for litigation and litigating the case in district
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court. Mot. Exh. E. Accordingly, Mr. Sackett’s effective hourly rate if awarded the full amount of
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fees sought would be $407.64 ($13,064.75 ÷ 32.05 hours = $407.64 per hour). This hourly rate is
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well within the median hourly rates for attorneys with his experience practicing in the Bay Area.
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For the Northern District of California
“a fee no greater than 25% of the past-due benefits owed to me” in the event of a favorable decision.
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United States District Court
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See Mot. Exh. F. One other court within this district previously concluded that Mr. Sackett was
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entitled to a $450 hourly rage given his experience and results obtained. See Hearn v. Barnhart,
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262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). Mr. Sackett obtained a very favorable result for
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Sizelove; his claim had been denied initially, upon reconsideration, upon hearing by an ALJ, and
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upon review by the Appeals Council, but upon remand he was awarded in excess of $50,000 in past-
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due benefits. Taking into account all of the circumstances of this case, the Court concludes that an
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award of $13,064.75 in attorneys’ fees is reasonable.
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On June 5, 2007, the parties filed a stipulated request for attorneys’ fees in the amount of
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$4,750 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Dkt. Entry 27. The Court
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approved that stipulated request on June 14, 2007. Dkt. Entry 28. Accordingly, upon receiving the
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attorneys’ fees awarded under § 406(b), Mr. Sackett must refund to Sizelove the $4,750 awarded
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under the EAJA.
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The Court notes that the docket does not reflect service of the present motion upon Sizelove.
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The Court presumes that Mr. Sackett informed his client of the motion. However, this order is
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without prejudice to a motion for reconsideration by Sizelove if he in fact objects to the fee.
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Finally, the Court notes that the present motion was filed more than three years after the
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ALJ’s favorable decision and almost two years after the Notice of Change in Payment regarding
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Sizelove’s entitlement to benefits was issued on January 18, 2010. Mr. Sackett explains that the
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staff member responsible for calendaring in this case left his firm in January 2011, and that the
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Case No. 5:05-cv-04533 JF
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. § 406(b)
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documents indicating that the motion should be filed later were discovered in a banker’s box of
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papers that the employee had left behind. Mot. at 2 n.2. The Ninth Circuit has not addressed the
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issue of timeliness with respect to § 406(b) motions. Some circuits have required a motion for
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attorneys’ fees to be filed within fourteen days after the entry of judgment, see, e.g., Pierce v.
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Barnhart, 440 F.3d 657, 663-64 (5th Cir. 2006), while others have required only that the motion be
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filed within a “reasonable time,” see McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).
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Under the circumstances, and absent Ninth Circuit authority to the contrary, this Court concludes
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that the “reasonable time” approach is most appropriate. Given Mr. Sackett’s explanation, the Court
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will deem the application for fees under § 406(b) to be timely.
ORDER
For the Northern District of California
United States District Court
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For the reasons set forth above, the motion is granted. Mr. Sackett is awarded $13,064.75 in
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attorneys’ fees. Mr. Sackett shall reimburse Sizelove in the amount of $4,750 (representing the
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EAJA fees previously awarded).
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Dated: August 24, 2012
_________________________________
JEREMY FOGEL
United States District Judge
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Case No. 5:05-cv-04533 JF
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. § 406(b)
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