(SS) R.P. v. Commissioner of Social Security, No. 1:2015cv00449 - Document 40 (E.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S COUNSEL'S UNOPPOSED MOTION FOR AUTHORIZATION OF ATTORNEY'S FEES UNDER 42 U.S.C. § 406(b), signed by Magistrate Judge Sheila K. Oberto on 03/04/2019. (Apodaca, P)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 R.P., by and through his guardian ad litem, GEMMA PADILLA, 10 Plaintiff, 11 v. 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 13 Defendant. 14 Case No. 1:15-cv-00449-SKO ORDER GRANTING PLAINTIFF’S COUNSEL’S UNOPPOSED MOTION FOR AUTHORIZATION OF ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b) (Doc. 37) / 15 I. 16 INTRODUCTION On January 19, 2019, counsel for Plaintiff R.P. (“Plaintiff”) filed a motion for an award of 17 18 attorney’s fees pursuant to 42 U.S.C. § 406(b) (“section 406(b)”). (Doc. 37.) On January 22, 2019, 19 the Court issued a minute order requiring Plaintiff and the Commissioner to file their responses in 20 opposition or statements of non-opposition to Plaintiff’s counsel’s motion, if any, by no later than 21 February 20, 2019. (Doc. 38.) Plaintiff and the Commissioner were served with copies of the 22 motion for attorney’s fees and the minute order. (Doc. 39.) Neither the Commissioner nor Plaintiff 23 filed any opposition to the motion by the February 20, 2019 deadline (See Docket). For the reasons set forth below, Plaintiff’s counsel’s unopposed motion for an award of 24 25 attorney’s fees is granted in the amount of $13,181.18, subject to an offset of $4,000.00 in fees 26 27 28 1 On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/agency/commissioner.html (last visited by the court on February 27, 2017). She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 1 already awarded pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), on 2 February 10, 2017 (see Doc. 36). 3 4 II. BACKGROUND Plaintiff, by and through his guardian ad litem Gemma Padilla, brought the underlying action 5 seeking judicial review of a final administrative decision denying his claim for disability benefits 6 under the Social Security Act. (Doc. 1.) The Court reversed the Commissioner’s denial of benefits 7 and remanded the case to the agency for further proceedings. (Doc. 32.) Judgment was entered in 8 favor of Plaintiff and against the Commissioner on December 5, 2016. (Doc. 33.) On February 9, 9 2019, the parties stipulated to an award of $4,000.00 in attorney’s fees under EAJA (Doc. 34), and 10 on February 10, 2017, the Court entered the stipulated order (Doc. 36). 11 On remand, the Commissioner issued a decision finding Plaintiff disabled. (See Doc. 37 at 12 3.) On January 14, 2019, the Commissioner the Commissioner issued a letter to Plaintiff approving 13 his claim for benefits and awarding him $60,724.72 in back payments. (See id., Declaration of 14 Roger Drake (“Drake Decl.”) ¶ 2 and Doc. 37-1 (“Ex. A”).) On January 19, 2019, counsel filed a 15 motion for attorney’s fees in the amount of $13,181.18, equal to 21.7% of Plaintiff’s back benefits, 16 subject to a $4,000 refund to Plaintiff for EAJA fees already awarded. (See id.) It is counsel’s 17 section 406(b) motion for attorney’s fees that is currently pending before the Court. 18 19 III. DISCUSSION Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which 20 they have successfully represented social security claimants. Section 406(b) provides the following: Whenever a court renders a judgment favorable to a claimant under this subchapter 21 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 22 of 25 percent of the total of the past-due benefits to which the claimant is entitled by 23 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, 24 the amount of such past-due benefits . . . . 25 42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting 26 provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits 27 awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 28 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). 2 The 1 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee 2 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 3 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of 4 fee awards under section 406(b) is to provide adequate incentive to represent claimants while 5 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. 6 Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 7 807. 8 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 9 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (Section 406(b) does not displace 10 contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to 11 review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . 12 the attorney for the successful claimant must show that the fee sought is reasonable for the services 13 rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that section 406(b) “does not 14 specify how courts should determine whether a requested fee is reasonable” but “provides only that 15 the fee must not exceed 25% of the past-due benefits awarded”). 16 Generally, “a district court charged with determining a reasonable fee award under 17 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking 18 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at 19 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified 20 several factors that may be considered in determining whether a fee award under a contingent-fee 21 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the 22 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in 23 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 24 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 25 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent 26 cases. Id. (citing Gisbrecht, 535 U.S. at 807-08). 27 Here, the fee agreement between Gemma Padilla, on behalf of Plaintiff, and “Drake & 28 Drake, P.C. / Roger Drake / Erika Bailey Drake” signed by Ms. Padilla and counsel, provides: 3 1 2 3 4 5 If this matter requires judicial review of any adverse decision of the Social Security Administration, the fee for successful prosecution of this matter is a separate 25% of the backpay awarded upon reversal of any unfavorable ALJ decision for work before the court. Attorney shall seek compensation under the Equal Access to Justice Act and such amount shall credit to the client fees otherwise payable for court work. Client shall endorse such documents as are needed to pay Attorney any amounts under the EAJA and assigns such fee awards to Attorney. All fees are negotiable and subject to approval by the court with jurisdiction. 6 (Doc. 37, Drake Decl. ¶ 10; Doc. 37-2 (“Ex. B”) (emphasis in original).) 7 The Court has considered the character of counsel’s representation of Plaintiff and the good 8 results achieved by counsel, which included an award of benefits. As Plaintiff’s counsel, Roger D. 9 Drake spent 22.3 hours representing Plaintiff (see Doc. 37, Drake Decl. ¶ 11; Doc. 37-3 (“Ex. C”) 10 (time sheet accounting for 22.3 attorney hours spent representing Plaintiff before the court)), 11 ultimately gaining a favorable decision in that the Commissioner’s decision was reversed and 12 remanded to the agency for reconsideration. There is no indication that a reduction of the award is 13 warranted due to any substandard performance by Plaintiff’s counsel, as counsel secured a 14 successful result for Plaintiff. There is also no evidence that counsel engaged in any dilatory conduct 15 resulting in delay. 16 While counsel’s regular, non-contingency hourly rate is $350, see Doc. 37, Drake Decl. ¶ 9, 17 the effective hourly rate requested equals $591.08 per hour. This hourly rate is not excessive when 18 compared to what the Ninth Circuit has approved in cases involving social security contingency fee 19 arrangements. See Crawford, 586 F.3d 1142, 1153 (9th Cir. 2009) (explaining that the majority 20 opinion found reasonable effective hourly rates equaling $519, $875, and $902) (J. Clifton, 21 concurring in part and dissenting in part); see also Thomas v. Colvin, No. 1:11−cv−01291−SKO, 22 2015 WL 1529331, at *2−3 (E.D. Cal. Apr. 3, 2015) (upholding an effective hourly rate of $1,093.22 23 for 40.8 hours of work); Jamieson v. Astrue, No. 1:09CV0490 LJO DLB, 2011 WL 587096, at *2 24 (E.D. Cal. Feb. 9, 2011) (upholding an effective hourly rate of $1,169.49 for 29.5 hours of work); 25 Palos v. Colvin, No. CV 15−04261−DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) 26 (upholding an effective hourly rate of $1,546.39 for 9.7 hours of work); Villa v. Astrue, No. 27 CIV−S−06−0846 GGH, 2010 WL 118454, at *1−2 (E.D. Cal. Jan. 7, 2010) (approving section 28 406(b) fees exceeding $1,000 per hour for 10.4 hours of work, and noting that “[r]educing § 406(b) 4 1 fees after Crawford is a dicey business”). Further, attorney’s fees in the amount of $13,181.18 do 2 not exceed (and are in fact less than) 25% of the past-due benefits awarded and are not excessive in 3 relation to the past-due award.2 See generally Ortega v. Comm’r of Soc. Sec., No. 1:12–cv–01030– 4 AWI–SAB, 2015 WL 5021646, at *3 (E.D. Cal. Aug. 21, 2015) (granting petition for an award of 5 attorney’s fees pursuant to section 406(b) in the amount of $24,350.00); Thomas, 2015 WL 6 1529331, at *3 (granting petition for an award of attorney’s fees pursuant to section 406(b) in the 7 amount of $44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS, 2013 WL 6712552, at *2 (E.D. 8 Cal. Dec. 19, 2013) (granting petition for an award of attorney’s fees pursuant to section 406(b) in 9 the amount of $20,577.57); Jamieson, 2011 WL 587096, at *2 (recommending an award of 10 attorney’s fees pursuant to section 406(b) in the amount of $34,500). 11 In making this determination, the Court recognizes the contingent-fee nature of this case and 12 counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. “District courts 13 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases.” Harris 14 v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). Attorneys who agree to represent 15 claimants pursuant to a contingent fee agreement assume the risk of receiving no compensation for 16 their time and effort if the action does not succeed. Id. Here, Plaintiff’s attorney accepted substantial 17 risk of loss in representing Plaintiff, whose application had already been denied at the administrative 18 level. Plaintiff agreed to the contingent fee. (See Doc. 37, Drake Decl. ¶ 10 and Ex. B.) Working 19 efficiently and effectively, the attorney secured a remand, and ultimately, the award of substantial 20 benefits to Plaintiff. (See id., Drake Decl. ¶ 2 and Ex. A.) 21 An award of attorney’s fees pursuant to section 406(b) in the amount of $13,181.18 is, 22 therefore, appropriate. An award of section 406(b) fees, however, must be offset by any prior award 23 of attorney’s fees granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. Plaintiff 24 was previously awarded $4,000.00 in fees pursuant to the EAJA; as such, counsel shall refund such 25 amount to Plaintiff. 26 27 28 2 Plaintiff’s counsel was also previously awarded $6,000.00 in administrative fees under 42 U.S.C. § 406(a) pursuant to an ALJ-approved fee agreement. (See Doc. 37 at 3.) Section 406(b) limits only the amount of attorney’s fees awarded under section 406(b), and not the combined fees awarded under both sections 406(a) and 406(b), see Clark v. Astrue, 529 F.3d 1211, 1213 (9th Cir. 2008). 5 IV. 1 CONCLUSION AND ORDER For the reasons stated above, the Court concludes that the fees sought by Plaintiff’s counsel 2 3 pursuant to section 406(b) are reasonable. Accordingly, IT IS ORDERED that: 1. 4 Plaintiff’s counsel’s unopposed motion for an award of attorney’s fees pursuant to 5 42 U.S.C. § 406(b) in the amount of $13,181.18 (Doc. 37) is granted; 2. 6 Plaintiff’s counsel shall refund to Plaintiff $4,000.00 of the section 406(b) fees 7 awarded as an offset for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d) (Doc. 8 36); and 3. 9 Counsel for Plaintiff shall file on the Court's docket proof of service of this order 10 upon Plaintiff, through his guardian ad litem, at his current or last known address. 11 12 IT IS SO ORDERED. 13 Dated: 14 March 4, 2019 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 .
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
