1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Robert Ogden Fetters, II, No. CV-18-08356-PCT-MTL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Before the Court is Plaintiff Robert Fetters’ Motion for Attorney Fees Under the 16 Equal Access to Justice Act (“EAJA”) (Doc. 25) and Mr. Fetters’ Motion for Attorney Fees 17 Under 42 U.S.C. § 406(b) (Doc 29). For the following reasons, the Court grants both 18 motions and awards a total of $39,409.09 in attorney’s fees. 19 I. BACKGROUND 20 Mr. Fetters filed a Complaint requesting judicial review of an Administrative Law 21 Judge’s (“ALJ”) decision denying his application for Social Security Disability Insurance. 22 (Doc. 1.) The Court entered an Order reversing the ALJ’s decision and remanding the case 23 to the Social Security Administration for a calculation of benefits. (Doc. 23.) Judgment 24 was issued on the same day. (Doc. 24.) On April 21, 2020, Plaintiff filed a Motion for 25 Attorney Fees Under the Equal Access to Justice Act (“EAJA”) and a Memorandum in 26 support thereof. (Docs. 25, 26.) Plaintiff’s counsel seeks $10,267.34 in attorney’s fees.1 27 1 Plaintiff’s motion initially sought $9,446.34 in attorney’s fees. (Doc. 25 at 2). Plaintiff 28 amended the amount requested to $10,267.34 based on additional hours spent to complete the reply brief. (Doc. 28 at 10.) 1 Defendant Commissioner of Social Security Administration (the “Commissioner”) does 2 not oppose granting fees under the EAJA but does oppose the amount requested. (Doc 27.) 3 On June 10, 2020, Plaintiff also filed a Motion for Attorney Fees Under 42 U.S.C. § 406(b) 4 and a Memorandum in support thereof. (Docs 29, 30.) Plaintiff’s counsel also seeks 5 $29,141.75 in attorney’s fees for representing Plaintiff on a contingent-fee basis. The 6 Commissioner declined to state a position on the reasonableness of Plaintiff’s requested 7 fees under Section 406(b). (Doc 31.) 8 II. LEGAL STANDARD 9 In a civil action against the United States, except a tort action, the EAJA provides 10 that “a court shall award to a prevailing party other than the United States fees and other 11 expenses . . . unless the court finds that the position of the United States was substantially 12 justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); 13 Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). “‘Substantial justification’ under the 14 EAJA means that the government’s position must have a reasonable basis in law and fact.” 15 Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998). In other words, the government’s 16 position must have been “justified to a degree that could satisfy a reasonable person.” 17 Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government must “demonstrate that 18 both its litigation position and the agency decision on review were substantially justified.” 19 Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013). 20 Fees awarded under the EAJA must be reasonable. See 28 U.S.C. § 2412(d)(2)(A). 21 A reasonable fee does not include hours that are “excessive, redundant, or otherwise 22 unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434. “[T]he fee applicant bears the 23 burden of establishing entitlement to an award and documenting the appropriate hours 24 expended and hourly rates.” Id. at 437. “[A] district court [retains] substantial discretion 25 in fixing the amount of an EAJA award.” Comm’r of INS v. Jean, 496 U.S. 154, 163 26 (1990). Courts generally “defer to the ‘winning lawyer’s professional judgment as to how 27 much time he was required to spend on the case.’” Costa v. Commr. of Soc. Sec. Admin., 28 690 F.3d 1132, 1136 (9th Cir. 2012) (citation omitted). 1 Attorneys who successfully represent Social Security benefits claimants can also 2 recover fees under Section 406(b) of the Social Security Act. 42 U.S.C. § 406(b)(1)(A). 3 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a 4 claimant . . . who was represented by an attorney, the court may determine and allow as 5 part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 6 the total of the past-due benefits.” Id. The fee remains payable “out of, and not in addition 7 to, the amount of [the] past-due benefits.” Id. The Act’s 25-percent statutory cap on the 8 fee does not preclude attorneys and claimants from entering into contingent-fee 9 agreements. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). “Courts [must] approach 10 fee determinations by looking first to the contingent-fee agreement, then testing it for 11 reasonableness.” Id. at 808. District courts may properly reduce the amount requested 12 under a contingent-fee agreement for “substandard performance, delay, or benefits that are 13 not in proportion to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 14 (9th Cir. 2009) (en banc). The burden rests on the attorney “to show that the fee sought is 15 reasonable for the services rendered.” Gisbrecht, 535 U.S. at 807. 16 If an attorney receives fees under both the EAJA and Section 406(b) of the Social 17 Security Act, the claimant’s attorney must “refund to the claimant the amount of the smaller 18 fee.” Id. at 796 (2002) (citation and alteration omitted). See also Russell v. Sullivan, 930 19 F.2d 1443, 1446 (9th Cir. 1991) (holding that dual fee awards under the EAJA and Section 20 406(b) are proper “as long as [Plaintiff’s] attorney gives the smaller of the two awards to 21 his client”). 22 III. ANALYSIS 23 A. EAJA 24 Since the Court remanded his Social Security case to the Commissioner for an award 25 of benefits, Mr. Fetters is considered a prevailing party for purposes of the EAJA. See 26 Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993). Defendant does not contend that the 27 government’s litigation position or underlying agency decision was substantially justified. 28 (Doc. 27.) Therefore, the Court finds that granting fees to Plaintiff under the EAJA is 1 proper. 2 Although Defendant does not claim that the agency’s position was substantially 3 justified, Defendant argues that the amount of fees requested under the EAJA is excessive. 4 (Doc. 27 at 2.) Plaintiff requests $10,267.34 in attorney’s fees for 50.1 hours of services 5 rendered in the case. (Doc. 26-2; Doc 28 at 10.) Defendant questions the reasonableness 6 of the time spent on the case by Plaintiff’s counsel given that the issues raised “were not 7 novel or unique” and Plaintiff’s use of “boilerplate language” in his briefs. (Id.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Robert Ogden Fetters, II, No. CV-18-08356-PCT-MTL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Before the Court is Plaintiff Robert Fetters’ Motion for Attorney Fees Under the 16 Equal Access to Justice Act (“EAJA”) (Doc. 25) and Mr. Fetters’ Motion for Attorney Fees 17 Under 42 U.S.C. § 406(b) (Doc 29). For the following reasons, the Court grants both 18 motions and awards a total of $39,409.09 in attorney’s fees. 19 I. BACKGROUND 20 Mr. Fetters filed a Complaint requesting judicial review of an Administrative Law 21 Judge’s (“ALJ”) decision denying his application for Social Security Disability Insurance. 22 (Doc. 1.) The Court entered an Order reversing the ALJ’s decision and remanding the case 23 to the Social Security Administration for a calculation of benefits. (Doc. 23.) Judgment 24 was issued on the same day. (Doc. 24.) On April 21, 2020, Plaintiff filed a Motion for 25 Attorney Fees Under the Equal Access to Justice Act (“EAJA”) and a Memorandum in 26 support thereof. (Docs. 25, 26.) Plaintiff’s counsel seeks $10,267.34 in attorney’s fees.1 27 1 Plaintiff’s motion initially sought $9,446.34 in attorney’s fees. (Doc. 25 at 2). Plaintiff 28 amended the amount requested to $10,267.34 based on additional hours spent to complete the reply brief. (Doc. 28 at 10.) 1 Defendant Commissioner of Social Security Administration (the “Commissioner”) does 2 not oppose granting fees under the EAJA but does oppose the amount requested. (Doc 27.) 3 On June 10, 2020, Plaintiff also filed a Motion for Attorney Fees Under 42 U.S.C. § 406(b) 4 and a Memorandum in support thereof. (Docs 29, 30.) Plaintiff’s counsel also seeks 5 $29,141.75 in attorney’s fees for representing Plaintiff on a contingent-fee basis. The 6 Commissioner declined to state a position on the reasonableness of Plaintiff’s requested 7 fees under Section 406(b). (Doc 31.) 8 II. LEGAL STANDARD 9 In a civil action against the United States, except a tort action, the EAJA provides 10 that “a court shall award to a prevailing party other than the United States fees and other 11 expenses . . . unless the court finds that the position of the United States was substantially 12 justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); 13 Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). “‘Substantial justification’ under the 14 EAJA means that the government’s position must have a reasonable basis in law and fact.” 15 Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998). In other words, the government’s 16 position must have been “justified to a degree that could satisfy a reasonable person.” 17 Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government must “demonstrate that 18 both its litigation position and the agency decision on review were substantially justified.” 19 Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013). 20 Fees awarded under the EAJA must be reasonable. See 28 U.S.C. § 2412(d)(2)(A). 21 A reasonable fee does not include hours that are “excessive, redundant, or otherwise 22 unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434. “[T]he fee applicant bears the 23 burden of establishing entitlement to an award and documenting the appropriate hours 24 expended and hourly rates.” Id. at 437. “[A] district court [retains] substantial discretion 25 in fixing the amount of an EAJA award.” Comm’r of INS v. Jean, 496 U.S. 154, 163 26 (1990). Courts generally “defer to the ‘winning lawyer’s professional judgment as to how 27 much time he was required to spend on the case.’” Costa v. Commr. of Soc. Sec. Admin., 28 690 F.3d 1132, 1136 (9th Cir. 2012) (citation omitted). 1 Attorneys who successfully represent Social Security benefits claimants can also 2 recover fees under Section 406(b) of the Social Security Act. 42 U.S.C. § 406(b)(1)(A). 3 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a 4 claimant . . . who was represented by an attorney, the court may determine and allow as 5 part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 6 the total of the past-due benefits.” Id. The fee remains payable “out of, and not in addition 7 to, the amount of [the] past-due benefits.” Id. The Act’s 25-percent statutory cap on the 8 fee does not preclude attorneys and claimants from entering into contingent-fee 9 agreements. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). “Courts [must] approach 10 fee determinations by looking first to the contingent-fee agreement, then testing it for 11 reasonableness.” Id. at 808. District courts may properly reduce the amount requested 12 under a contingent-fee agreement for “substandard performance, delay, or benefits that are 13 not in proportion to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 14 (9th Cir. 2009) (en banc). The burden rests on the attorney “to show that the fee sought is 15 reasonable for the services rendered.” Gisbrecht, 535 U.S. at 807. 16 If an attorney receives fees under both the EAJA and Section 406(b) of the Social 17 Security Act, the claimant’s attorney must “refund to the claimant the amount of the smaller 18 fee.” Id. at 796 (2002) (citation and alteration omitted). See also Russell v. Sullivan, 930 19 F.2d 1443, 1446 (9th Cir. 1991) (holding that dual fee awards under the EAJA and Section 20 406(b) are proper “as long as [Plaintiff’s] attorney gives the smaller of the two awards to 21 his client”). 22 III. ANALYSIS 23 A. EAJA 24 Since the Court remanded his Social Security case to the Commissioner for an award 25 of benefits, Mr. Fetters is considered a prevailing party for purposes of the EAJA. See 26 Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993). Defendant does not contend that the 27 government’s litigation position or underlying agency decision was substantially justified. 28 (Doc. 27.) Therefore, the Court finds that granting fees to Plaintiff under the EAJA is 1 proper. 2 Although Defendant does not claim that the agency’s position was substantially 3 justified, Defendant argues that the amount of fees requested under the EAJA is excessive. 4 (Doc. 27 at 2.) Plaintiff requests $10,267.34 in attorney’s fees for 50.1 hours of services 5 rendered in the case. (Doc. 26-2; Doc 28 at 10.) Defendant questions the reasonableness 6 of the time spent on the case by Plaintiff’s counsel given that the issues raised “were not 7 novel or unique” and Plaintiff’s use of “boilerplate language” in his briefs. (Id. at 3-4.) 8 Defendant also argues that Plaintiff requests compensation for providing duplicate services 9 and preparing “unnecessarily lengthy briefs.” (Id. at 6.) 10 After reviewing the Attorney Itemization of Services (Doc. 26-2), the Court finds 11 that the time expended by Plaintiff’s counsel was reasonable. “[T]he court should defer to 12 the winning lawyer’s professional judgment as to how much time he was required to spend 13 on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Although 14 courts most often grant between twenty to forty hours in attorney’s fees for social security 15 cases, courts must not “apply a de facto cap of the number of hours for which attorneys 16 may be compensated under the EAJA.” Costa v. Commr. of Soc. Sec. Admin., 690 F.3d 17 1132, 1136 (9th Cir. 2012) (“[W]e question the usefulness of reviewing the amount of time 18 spent in other cases to decide how much time an attorney could reasonably spend on the 19 particular case before the court.”). Although the case raises non-novel issues, “social 20 security disability cases are often highly fact-intensive and require careful review of the 21 administrative record.” Id. at 1134 n.1 (reversing a magistrate judge’s decision to reduce 22 the requested number of hours on the basis of non-novel issues). Furthermore, providing 23 a duplicate service does not preclude an attorney from billing for the duplicate service 24 rendered. Moreno, 534 F.3d at 1112. (“One certainly expects some degree of duplication 25 as an inherent part of the process.”) (emphasis in original). 26 Therefore, the Court grants Plaintiff’s Motion for Attorney Fees Under the EAJA 27 and awards fees in the amount of $10,267.34. The EAJA fees awarded herein shall be 28 made payable to Plaintiff’s counsel Mark Caldwell, P.C. pursuant to Plaintiff’s fee 1 agreement. (Doc. 26-1.) The Court, as discussed below, also awards fees under 2 Section 406(b) of the of the Social Security Act. Therefore, any payment of EAJA fees 3 received by Plaintiff’s counsel shall be immediately remitted to Mr. Fetters. 4 B. Section 406(b) 5 After reviewing the Plaintiff’s contingent-fee agreement with his counsel, the Court 6 finds the attorney’s fees requested under Section 406(b) to be reasonable. Plaintiff 7 contracted to pay 25 percent of past-due benefits on a contingency fee basis. (Doc. 30 at 8 18-19.) Plaintiff’s counsel requests $29,141.75, the amount withheld from Plaintiff’s past- 9 due benefits, in attorney’s fee. Plaintiff’s counsel’s itemization of services indicated 50.1 10 hours of services rendered, equaling an hourly fee of $581.67. (Doc. 30 at 23-24.) 11 Plaintiff’s counsel succeeded in convincing the Court to remand Mr. Fetters’ case to the 12 Social Security Administration for the award of benefits. There is no indication of 13 substandard performance or undue delay by Plaintiff’s counsel in prosecuting Mr. Fetters’ 14 case. There is also no indication of “fraud or overreaching in the making of the 25% 15 contingent-fee agreement[ ].” Crawford, 586 F.3d at 1151. Furthermore, Plaintiff’s 16 requested hourly rate falls within the range of fees approved by the Ninth Circuit. Id. at 17 1153 (approving fees equaling $519, $875, and $902 per hour). Therefore, the Court 18 concludes that an award of fees of $29,141.75 is reasonable. Accordingly, the Court grants 19 Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b) and awards $29,141.75 in 20 fees, which shall be payable to Mark Caldwell, P.C. 21 IV. CONCLUSION 22 Since the Commissioner did not show that the government’s position was 23 substantially justified, the Court finds that a fee award under the EAJA is proper. The Court 24 has reviewed the Attorney Itemization of Services and finds that the time expended and 25 amounts charged by Plaintiff’s counsel are reasonable for this case. The Court has also 26 reviewed the contingent-fee agreement and finds that the agreement both falls within the 27 statutory cap imposed by Section 406(b) and is reasonable. Accordingly, 28 IT IS ORDERED granting Plaintiff’s Motion for Award of Attorney Fees Under 1 || the Equal Access to Justice Act (Doc. 25). 2 IT IS FURTHER ORDERED granting Plaintiff's Motion for Award of Attorney || Fees Under 42 U.S.C. § 406(b) (Doc. 29). 4 IT IS FURTHER ORDERED that Plaintiff is awarded $39,409.09 in attorney’s 5|| fees. 6 IT IS FINALLY ORDERED that if the Commissioner determines that Plaintiff || does not owe a debt that is subject to offset under the Treasury Offset Program, and agrees 8 || to waive the requirements of the Anti-Assignment Act (31 U.S.C. § 3727(b)), the fees will 9|| be made payable to Plaintiff's attorney. However, if there is a debt owed under the Treasury Offset Program, the remaining EAJA fees after offset will be paid by check made out to 11 || Plaintiff but delivered to Plaintiff's attorney. 12 Dated this 16th day of September, 2020. 13 Wicked T. diburde Michael T. Liburdi 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28
-6-