7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 BRETT MICHAEL PETERSON, Case No. 1:23-cv-00684-SAB 11 Plaintiff, ORDER GRANTING PETITIONERS’ 12 MOTION FOR ATTORNEY’S FEES v. PURSUANT TO 42 U.S.C. § 406(b) 13 COMMISSIONER OF SOCIAL SECURITY, 14 (ECF No. 30) Defendant. 15 16 Before the Court is a motion for attorney’s fees brought by Petitioners Jonathan O. Peña 17 and Dolly M. Trompeter, attorneys for Brett Michael Petersen1 (“Plaintiff”). Petitioners requests 18 fees in the amount of $22,427.00 pursuant to 42 U.S.C. § 406(b)(1). Petitioners also request they 19 be directed to reimburse Plaintiff the Equal Access Justice Act (“EAJA”) fee awarded in full, 20 $8,119.33. 21 Plaintiff did not file an opposition or otherwise respond to the motion for attorney’s fees, 22 and the time to do so has passed. Defendant Commissioner of Social Security, as a de facto 23 trustee for Plaintiff, filed a response to Petitioners’ motion, in which he asserts he neither 24 supports nor opposes Petitioners’ request for attorney’s fees, but observes that the Court should 25 direct Petitioners to reimburse Plaintiff any fees they previously received under the EAJA. (ECF 26 No. 33.)
27 1 It appears that when the case was opened, the Clerk of the Court entered Plaintiff’s last name as “Peterson” as a scrivener’s error. (See ECF No. 1.) Because the caption has not been subsequently updated, the Court leaves it as is 1 I. 2 BACKGROUND 3 On October 1, 20202, and again on April 23, 2023, Plaintiff entered into a contingent fee 4 agreement with the Jonathan O. Peña and Dolly M. Trompeter, attorneys at law. (ECF No. 30- 5 3.) The agreements entitled Petitioners to an award of 25 percent of the past-due benefits 6 awarded, including if judicial review of an administrative decision were required and the adverse 7 decision of an ALJ were reversed. (Id.) 8 On October 13, 2020, Plaintiff filed a complaint in this Court, before the Hon. Jennifer L. 9 Thurston, then-United States Magistrate Judge, challenging the denial of social security benefits. 10 Petersen v. Commissioner of Social Security, No. 1:20-cv-01459-JLT, ECF No. 1 (E.D. Cal. Oct. 11 13, 2020). On July 20, 2021, the parties file a stipulation for voluntary remand pursuant to 12 Sentence Four of 42 U.S.C. § 405(g). Id. at ECF No. 16. Judge Thurston approved the 13 stipulation, ordered the matter be remanded back to the agency, and directed the Clerk of the 14 Court to enter judgment. Id. at ECF Nos. 17, 18. On November 5, 2021, the parties stipulated to 15 an award of attorney’s fees in the amount of $919.33 under the EAJA, 28 U.S.C. § 2412, which 16 Judge Thurston approved. Id. at ECF Nos. 19, 20. 17 Following a subsequent final decision from the Commissioner, on May 4, 2023, Plaintiff 18 filed a complaint before the undersigned challenging the denial of social security benefits. (ECF 19 No. 1.) Following the lodging of the social security administrative record and briefing related to 20 judicial review (ECF Nos. 11, 18, 22, 23), on July 7, 2024, the Court reversed and remanded the 21 final decision of the Commissioner and directed the Clerk of the Court to enter judgment. (ECF 22 Nos. 24, 25.) On October 4, 2024, the parties stipulated to an award of attorney’s fees in the 23 amount of $7,200.00 under the EAJA, 28 U.S.C. § 2412, which the Court approved. (ECF No. 24 27, 29.) 25 Ultimately, on or around March 4, 2026, Plaintiff became a prevailing party. (ECF No. 26 30-2.) In the instant motion, Petitioners seek an award of attorney’s fees in the amount of 27 $22,427.00, pursuant to 42 U.S.C. § 406(b) and an order to reimburse Plaintiff the amount 1 proceedings in 2021 and 2024). (ECF No. 34.) 2 II. 3 LEGAL STANDARD 4 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 5 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 6 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 7 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 8 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 9 The Supreme Court has explained that a district court reviews a petition for section 10 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 11 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 12 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 13 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 14 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty- 15 five percent maximum fee is not an automatic entitlement, and courts are required to ensure that 16 the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09. The attorney has the burden of 17 demonstrating that the fees requested are reasonable. Id. at 808; Crawford, 586 F.3d at 1148. 18 In determining the reasonableness of an award, the district court should consider the 19 character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, 20 an award of section 406(b) fees is offset by an award of attorney’s fees granted under the EAJA. 21 Id. at 796. The Ninth Circuit has identified several factors that a district court can examine under 22 Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met 23 his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the 24 standard of performance of the attorney in representing the claimant; (2) whether the attorney 25 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 26 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 27 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 1 III. 2 DISCUSSION 3 A. Attorney Fees Under 42 U.S.C. § 406(b) 4 The Court begins with Plaintiff’s agreements to pay 25% of the past-due benefits 5 awarded following both for representation in the federal courts and in receiving a favorable 6 decision on his applications. (ECF No. 30-3.) The Court recognizes the contingent nature of this 7 case and counsel’s assumption of the risk of going uncompensated. Hearn v. Barnhart, 262 F. 8 Supp. 2d 1033, 1037 (N.D. Cal. 2003). The Social Security Administration notified Plaintiff that 9 “[w]e usually withhold 25 percent of past due benefits in order to pay the approved 10 representative’s fee. We withheld $22,427.00 from your past due benefits in case we need to pay 11 your representative.” (ECF No. 30-2, p. 4.) Petitioners now seek $22,427.00, which is precisely 12 25 percent. (ECF No.
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7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 BRETT MICHAEL PETERSON, Case No. 1:23-cv-00684-SAB 11 Plaintiff, ORDER GRANTING PETITIONERS’ 12 MOTION FOR ATTORNEY’S FEES v. PURSUANT TO 42 U.S.C. § 406(b) 13 COMMISSIONER OF SOCIAL SECURITY, 14 (ECF No. 30) Defendant. 15 16 Before the Court is a motion for attorney’s fees brought by Petitioners Jonathan O. Peña 17 and Dolly M. Trompeter, attorneys for Brett Michael Petersen1 (“Plaintiff”). Petitioners requests 18 fees in the amount of $22,427.00 pursuant to 42 U.S.C. § 406(b)(1). Petitioners also request they 19 be directed to reimburse Plaintiff the Equal Access Justice Act (“EAJA”) fee awarded in full, 20 $8,119.33. 21 Plaintiff did not file an opposition or otherwise respond to the motion for attorney’s fees, 22 and the time to do so has passed. Defendant Commissioner of Social Security, as a de facto 23 trustee for Plaintiff, filed a response to Petitioners’ motion, in which he asserts he neither 24 supports nor opposes Petitioners’ request for attorney’s fees, but observes that the Court should 25 direct Petitioners to reimburse Plaintiff any fees they previously received under the EAJA. (ECF 26 No. 33.)
27 1 It appears that when the case was opened, the Clerk of the Court entered Plaintiff’s last name as “Peterson” as a scrivener’s error. (See ECF No. 1.) Because the caption has not been subsequently updated, the Court leaves it as is 1 I. 2 BACKGROUND 3 On October 1, 20202, and again on April 23, 2023, Plaintiff entered into a contingent fee 4 agreement with the Jonathan O. Peña and Dolly M. Trompeter, attorneys at law. (ECF No. 30- 5 3.) The agreements entitled Petitioners to an award of 25 percent of the past-due benefits 6 awarded, including if judicial review of an administrative decision were required and the adverse 7 decision of an ALJ were reversed. (Id.) 8 On October 13, 2020, Plaintiff filed a complaint in this Court, before the Hon. Jennifer L. 9 Thurston, then-United States Magistrate Judge, challenging the denial of social security benefits. 10 Petersen v. Commissioner of Social Security, No. 1:20-cv-01459-JLT, ECF No. 1 (E.D. Cal. Oct. 11 13, 2020). On July 20, 2021, the parties file a stipulation for voluntary remand pursuant to 12 Sentence Four of 42 U.S.C. § 405(g). Id. at ECF No. 16. Judge Thurston approved the 13 stipulation, ordered the matter be remanded back to the agency, and directed the Clerk of the 14 Court to enter judgment. Id. at ECF Nos. 17, 18. On November 5, 2021, the parties stipulated to 15 an award of attorney’s fees in the amount of $919.33 under the EAJA, 28 U.S.C. § 2412, which 16 Judge Thurston approved. Id. at ECF Nos. 19, 20. 17 Following a subsequent final decision from the Commissioner, on May 4, 2023, Plaintiff 18 filed a complaint before the undersigned challenging the denial of social security benefits. (ECF 19 No. 1.) Following the lodging of the social security administrative record and briefing related to 20 judicial review (ECF Nos. 11, 18, 22, 23), on July 7, 2024, the Court reversed and remanded the 21 final decision of the Commissioner and directed the Clerk of the Court to enter judgment. (ECF 22 Nos. 24, 25.) On October 4, 2024, the parties stipulated to an award of attorney’s fees in the 23 amount of $7,200.00 under the EAJA, 28 U.S.C. § 2412, which the Court approved. (ECF No. 24 27, 29.) 25 Ultimately, on or around March 4, 2026, Plaintiff became a prevailing party. (ECF No. 26 30-2.) In the instant motion, Petitioners seek an award of attorney’s fees in the amount of 27 $22,427.00, pursuant to 42 U.S.C. § 406(b) and an order to reimburse Plaintiff the amount 1 proceedings in 2021 and 2024). (ECF No. 34.) 2 II. 3 LEGAL STANDARD 4 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 5 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 6 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 7 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 8 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 9 The Supreme Court has explained that a district court reviews a petition for section 10 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 11 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 12 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 13 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 14 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty- 15 five percent maximum fee is not an automatic entitlement, and courts are required to ensure that 16 the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09. The attorney has the burden of 17 demonstrating that the fees requested are reasonable. Id. at 808; Crawford, 586 F.3d at 1148. 18 In determining the reasonableness of an award, the district court should consider the 19 character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, 20 an award of section 406(b) fees is offset by an award of attorney’s fees granted under the EAJA. 21 Id. at 796. The Ninth Circuit has identified several factors that a district court can examine under 22 Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met 23 his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the 24 standard of performance of the attorney in representing the claimant; (2) whether the attorney 25 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 26 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 27 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 1 III. 2 DISCUSSION 3 A. Attorney Fees Under 42 U.S.C. § 406(b) 4 The Court begins with Plaintiff’s agreements to pay 25% of the past-due benefits 5 awarded following both for representation in the federal courts and in receiving a favorable 6 decision on his applications. (ECF No. 30-3.) The Court recognizes the contingent nature of this 7 case and counsel’s assumption of the risk of going uncompensated. Hearn v. Barnhart, 262 F. 8 Supp. 2d 1033, 1037 (N.D. Cal. 2003). The Social Security Administration notified Plaintiff that 9 “[w]e usually withhold 25 percent of past due benefits in order to pay the approved 10 representative’s fee. We withheld $22,427.00 from your past due benefits in case we need to pay 11 your representative.” (ECF No. 30-2, p. 4.) Petitioners now seek $22,427.00, which is precisely 12 25 percent. (ECF No. 22.) From a broad lens, the $22,427.00 fee is not excessively large in 13 relation to the past-due award of $89,708.2 14 There is no indication that a reduction of fees is warranted for substandard performance. 15 See Crawford, 586 F.3d at 1151. Indeed, this action was initially so briefly in this Court before 16 the parties stipulated to remand due apparently to the content of the administrative record. 17 Thereafter, Plaintiff again came to the Court and secured a reverse and remand order on the 18 merits of his brief. Thus, by all accounts, Petitioners are experienced, competent attorneys who 19 ultimately secured a successful result for Plaintiff. Further, although this action has been going 20 on since 2020, there is no indication that Petitioners were responsible for any delay in the court 21 proceedings to suggest any undue accumulation of past-due benefits. (See ECF No. 30-4.) 22 Gisbrecht also instructs that where “the benefits are large in comparison to the amount of 23 time counsel spent on the case,” a downward adjustment in the requested fee award may be “in 24 order.” Gisbrecht, 535 U.S. at 808 (noting a district court “may require the claimant’s attorney 25 to submit, not as a basis for satellite litigation, but as an aid to the court’s assessment of the 26 reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing 27 2 The Court extrapolated this sum by taking $22,427.00 as 25 percent of an unknown final award amount and 1 the claimant and a statement of the lawyer’s normal hourly billing charge for noncontingent-fee 2 cases”) (emphasis added). The attorney has the burden of demonstrating that the fees requested 3 are reasonable. Id.; Crawford, 586 F.3d at 1148. 4 In support of the instant motion, Petitioners submit a log of the time spent prosecuting 5 this action in district court. (ECF No. 30-4.) The log demonstrates that Petitioners spent 37 6 hours before the Court, for both cases. (Id.) The hours include reviewing documents and the 7 record, preparing the standard complaint, correspondence, and preparing and filing the opening 8 brief and reply. (Id.) 9 Taking $22,427.00 as the award, Petitioners note that the hourly rate would be $606.14. 10 In support of that this is an acceptable hourly rate under the circumstances, Petitioners have 11 directed the Court to various cases. For example, in Malta v. Commissioner, No. 1:10-cv-00415- 12 CDB, 2024 WL 3618430 (E.D. Cal. Aug. 1, 2024), the court awarded attorney’s fees in the 13 hourly amount of $1,553.87. Id. at *3. Moreover, in Spina v. Kijakazi, No. 19-cv-05171-BLF, 14 2023 WL 3977666 (N.D. Cal. June 13, 2023), the court approved an hourly rate of $2,344.56. 15 Id. at *1. The Court finds these cases to be instructive and notes that in both Malta and Spina, 16 the district courts were persuaded that even with seemingly large hourly rates, the total award 17 was either at 25 percent or less with regard to the past-due benefits award. 18 Here, the Court again recognizes that the requested attorney’s fees in the amount of 19 $22,427.00 is precisely 25 percent of the past-due benefits awarded and finds it not excessive in 20 relation to the past-due award. The Court is cognizant that neither Plaintiff nor the Defendant 21 oppose the award of fees as unreasonable. Petitioners also assumed the risk of receiving no 22 compensation. (ECF No. 34-3.) The Court finds the fee amount requested is reasonable in light 23 of the several years of litigation and the result achieved, as well as the lack of any evidence 24 suggesting either dilatory conduct or a windfall to Petitioners. Accordingly, the Court finds that 25 the amount of fees counsel seeks under § 406(b) is reasonable. 26 B. EAJA Refund 27 “[A]n award of attorney’s fees under § 406(b) does ‘not prevent an award of fees and 1 | work under both’ § 406(b) and the EAJA, then ‘the claimant’s attorney refunds to the claimant 2 amount of the smaller fee.’” Castillo v. Kijakazi, No. 5:20-CV-02347-KES, 2023 WL 3 | 12090215, at *5 (C.D. Cal. June 8, 2023) (emphasis in original), quoting Public Law No. 99-80, 4 | 99 Stat. 183 (1985). 5 Petitioners and Defendant request that the Court direct Petitioners to reimburse Plaintiff 6 | the entirety of fees they previously received under the EAJA. (ECF Nos. 30, 33.) The Court 7 | agrees and will order Petitioners to refund Plaintiff the entire amount of the EAJA fees 8 | previously awarded: $8,119.33. See Gisbrecht, 535 U.S. at 796. 9 VI. 10 CONCLUSION AND ORDER 11 For the reasons stated above, the Court finds that the fees sought by Petitioners pursuant 12 | to Section 406(b) are reasonable. The award of Section 406(b) fees must be offset by any and all 13 | prior awards of fees granted under the EAJA. Accordingly, IT IS HEREBY ORDERED that: 14 1. Petitioners’ motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b) 15 in the amount of $22,427.00 (ECF No. 30) is GRANTED; 16 2. The funds SHALL be paid to Petitioners out of the funds withheld by the Social 17 Security Administration; and 18 3. Petitioners are ORDERED to refund $8,119.33 to Plaintiff Brett Michael Petersen 19 as an offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d). 20 >] IT IS SO ORDERED. DAA Le 22 | Dated: _ April 2, 2026_ Oe STANLEY A. BOONE 23 United States Magistrate Judge 24 25 26 27 28