Richard Bennett v. Commissioner of Social Security

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 RICHARD BENNETT, 9 Plaintiff, Case No. 3:20-cv-05202-TLF 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY , 12 Defendant. 13 14 This matter is before the Court on remand from the Ninth Circuit Court of 15 Appeals, Case No. 22-35901. On July 27, 2022, this Court denied plaintiff’s motion for 16 attorney’s fees because the Court lacked authority to order the Commissioner to pay 17 fees when it had not withheld sufficient funds. Dkt. 23. The Court also denied plaintiff’s 18 motion for reconsideration. Dkt. 26. On November 11, 2022, plaintiff appealed that 19 decision to the Ninth Circuit Court of Appeals. Dkt. 27. The Ninth Circuit issued a 20 memorandum reversing the Court’s order and remanding for a determination of an 21 award of attorney’s fees. Dkt. 29. The formal mandate of the Ninth Circuit was entered 22 on May 4, 2026. See Dkt. 32. 23 24 1 This Court previously found the attorney-client fee agreement here appeared 2 reasonable under the standards established in 42 U.S.C. § 406(b) and Crawford v. 3 Astrue, 586 F.3d 1142 (9th Cir. 2009). Dkt. 23. The Commissioner does not object to 4 the amount requested. Dkt. 21 at 1. Based on plaintiff’s award of $127,971.10 and the 5 fee agreement, plaintiff’s counsel would be entitled to a fee of $31,992.76 ($127,971.10

6 x 0.25=$31,992.76). Plaintiff’s counsel was granted a fee at the statutory maximum of 7 $6,000 for representation at the administrative level. Dkt. 20 at 3. Plaintiff’s counsel 8 voluntarily reduced this fee request by that amount, and thus requests $25,992.76 9 under § 406(b). Dkt. 19. 10 Plaintiff’s counsel has already received a fee of $6,939.85 under the Equal 11 Access to Justice Act (EAJA). See Dkt. 18. Fees may be awarded under both § 406(b) 12 and EAJA, but the claimant’s attorney must “refund to the claimant the amount of the 13 small fee.” Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). To satisfy this obligation, 14 plaintiff’s counsel has requested that payment of her § 406(b) fee be reduced by

15 $6,939.85, the amount of the EAJA award, “as a more efficient alternative to refunding 16 the fee.” Dkt. 20 at 3 (citing Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 17 1221 (9th Cir. 2012). 18 Here, the Commissioner withheld $6,000 of past due benefits, paid out on May 6, 19 2022, as an award of § 406(a) fees. Dkt. 21 at 1. The remaining past due benefits were 20 paid or released to plaintiff. Id. Thus, the Commissioner has not withheld funds sufficient 21 to satisfy the award of § 406(b) fees. This Court lacks authority to order the 22 Commissioner to pay fees when it has not withheld sufficient funds. See, e.g., Booth v. 23 Comm’r of Soc. Sec., 645 F. App’x 455, 458 (6th Cir. 2016) (“[T]he Commissioner could 24 1 not be ordered to pay the fee ‘out of’ Booth’s past due benefits because those benefits 2 had already been disbursed.”); Dobson v. Comm’r of Soc. Sec., 2013 WL 6198185, at 3 *5 (E.D. Cal. Nov. 27, 2013) (“[I]t was not the court’s intention to order the 4 Commissioner to directly pay plaintiff’s counsel any section 406(b) fees awarded in 5 excess of the withheld past-due benefits, nor does the court have the statutory authority

6 to do so.”). 7 That said, a court order awarding attorney’s fees is required for an attorney to 8 proceed with an action for payment, either through the claimant or through agency 9 procedures. Crawford, 586 F.3d at 1147 (citing 42 U.S.C. § 406(b)(2)) (“[T]he court- 10 awarded fee is the only way a successful SSDI attorney may recover fees for work 11 performed before the district court. In fact, it is a criminal offense for an attorney to 12 collect fees in excess of those allowed by the court.”). 13 Accordingly, it is ORDERED that plaintiff’s attorney, Maren Bam, be awarded a 14 gross attorney fee of $25,992.76, reduced by the EAJA fees of $6,939.85 previously

15 awarded, leaving a net fee of $19,052.93. The Court declines to provide specific 16 instructions on how the fee is to be recovered, as “the consequences of [a shortage of 17 withheld benefits] are best addressed to the agency, Congress, or the attorney’s good 18 judgment.” Culbertson v. Berryhill, 586 U.S. 53, 62 (2019). 19 // 20 // 21 Dated this 28th day of May, 2026 22 A 23 Theresa L. Fricke United States Magistrate Judge 24