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9 BARRY LYNN LANGSTON, Case No. 1:18-cv-00273-SKO 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 v. COUNSEL’S UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT 12 ANDREW SAUL, TO 42 U.S.C. § 406(b) Acting Commissioner of Social Security1, 13 (Doc. 24) Defendant. / 14 15 I. INTRODUCTION 16 17 On July 1, 2020, Monica Perales (“Counsel”), counsel for Plaintiff Barry Lynn Langston 18 (“Plaintiff”), filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b) (“section 19 406(b)”). (Doc. 24.) On July 2, 2020, the Court issued a minute order requiring Plaintiff and the 20 Commissioner to file their responses in opposition or statements of non-opposition to Counsel’s 21 motion, if any, by no later than July 22, 2020. (Doc. 25.) Plaintiff and the Commissioner were 22 served with copies of the motion for attorney’s fees and the minute order. (Docs. 24, 26.) On July 23 15, 2020, the Commissioner filed a response, acknowledging that he was not a party to the 24 contingent-fee agreement between Plaintiff and Counsel and therefore “not in a position to either 25 assent or object to the § 406(b) fees that Counsel seeks from Plaintiff’s past-due benefits,” but 26 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/agency/commissioner.html (last visited by the court on August 26, 2019). He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 28 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper 1 nevertheless taking “no position on the reasonableness of the request.” (See Doc. 27 at 2, 5.) 2 Plaintiff did not file any objection to the motion by the July 22, 2020 deadline (See Docket). 3 For the reasons set forth below, Counsel’s motion for an award of attorney’s fees is granted 4 in the amount of $23,400.00, subject to an offset of $3,400.00 in fees already awarded pursuant to 5 the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), on April 25, 2019 (see Doc. 23). 6 II. BACKGROUND 7 Plaintiff brought the underlying action seeking judicial review of a final administrative 8 decision denying her claim for disability benefits under the Social Security Act. (Doc. 1.) The 9 parties stipulated to voluntarily remand the case pursuant to Sentence Four of 42 U.S.C. 405(g) on 10 January 22, 2019, and judgment was entered in favor of Plaintiff and against the Commissioner on 11 January 23, 2019. (Docs. 19, 20, 21.) On April 23, 2019, the parties stipulated to an award of 12 $3,400.00 in attorney fees under EAJA, which was entered on April 25, 2019. (Docs. 22, 23.) 13 On remand, the Commissioner found Plaintiff disabled as of February 3, 2014. (See Doc. 14 24-2 at 14.) On May 5, 2020, the Commissioner issued a letter to Plaintiff approving his claim for 15 benefits and awarding him $143,511.00 in back payments beginning August 2014. (See Doc. 24 at 16 3; Doc. 24-3 at 1–2.) On July 1, 2020, Counsel filed a motion for attorney’s fees in the amount of 17 $23,400.00, equal to 16.3% of Plaintiff’s back benefits, with an offset of $3,400.00 for EAJA fees 18 already awarded.2 (Doc. 23.) It is Counsel’s section 406(b) motion for attorney’s fees that is 19 currently pending before the Court. 20 III. DISCUSSION 21 Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which 22 they have successfully represented social security claimants. Section 406(b) provides the following: 23 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and 24 allow as part of its judgment a reasonable fee for such representation, not in excess 25 of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify 26 the amount of such fee for payment to such attorney out of, and not in addition to, 27 2 Counsel contends that her request for $23,400.00 represents “a little more than 17% of the past due benefits paid or 28 payable” to Plaintiff. (Doc. 23 at 4–5.) The evidence before the Court, however, shows that Counsel’s fee request 1 2 42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting 3 provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits 4 awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 5 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The 6 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee 7 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 8 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of 9 fee awards under section 406(b) is to provide adequate incentive to represent claimants while 10 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. 11 Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 12 807.1 13 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 14 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (Section 406(b) does not displace 15 contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to 16 review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . 17 the attorney for the successful claimant must show that the fee sought is reasonable for the services 18 rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that section 406(b) “does not 19 specify how courts should determine whether a requested fee is reasonable” but “provides only that 20 the fee must not exceed 25% of the past-due benefits awarded”). 21 Generally, “a district court charged with determining a reasonable fee award under 22 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking 23 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at 24 1148 (quoting Gisbrecht, 535 U.S. at 793, 808).
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 BARRY LYNN LANGSTON, Case No. 1:18-cv-00273-SKO 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 v. COUNSEL’S UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT 12 ANDREW SAUL, TO 42 U.S.C. § 406(b) Acting Commissioner of Social Security1, 13 (Doc. 24) Defendant. / 14 15 I. INTRODUCTION 16 17 On July 1, 2020, Monica Perales (“Counsel”), counsel for Plaintiff Barry Lynn Langston 18 (“Plaintiff”), filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b) (“section 19 406(b)”). (Doc. 24.) On July 2, 2020, the Court issued a minute order requiring Plaintiff and the 20 Commissioner to file their responses in opposition or statements of non-opposition to Counsel’s 21 motion, if any, by no later than July 22, 2020. (Doc. 25.) Plaintiff and the Commissioner were 22 served with copies of the motion for attorney’s fees and the minute order. (Docs. 24, 26.) On July 23 15, 2020, the Commissioner filed a response, acknowledging that he was not a party to the 24 contingent-fee agreement between Plaintiff and Counsel and therefore “not in a position to either 25 assent or object to the § 406(b) fees that Counsel seeks from Plaintiff’s past-due benefits,” but 26 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/agency/commissioner.html (last visited by the court on August 26, 2019). He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 28 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper 1 nevertheless taking “no position on the reasonableness of the request.” (See Doc. 27 at 2, 5.) 2 Plaintiff did not file any objection to the motion by the July 22, 2020 deadline (See Docket). 3 For the reasons set forth below, Counsel’s motion for an award of attorney’s fees is granted 4 in the amount of $23,400.00, subject to an offset of $3,400.00 in fees already awarded pursuant to 5 the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), on April 25, 2019 (see Doc. 23). 6 II. BACKGROUND 7 Plaintiff brought the underlying action seeking judicial review of a final administrative 8 decision denying her claim for disability benefits under the Social Security Act. (Doc. 1.) The 9 parties stipulated to voluntarily remand the case pursuant to Sentence Four of 42 U.S.C. 405(g) on 10 January 22, 2019, and judgment was entered in favor of Plaintiff and against the Commissioner on 11 January 23, 2019. (Docs. 19, 20, 21.) On April 23, 2019, the parties stipulated to an award of 12 $3,400.00 in attorney fees under EAJA, which was entered on April 25, 2019. (Docs. 22, 23.) 13 On remand, the Commissioner found Plaintiff disabled as of February 3, 2014. (See Doc. 14 24-2 at 14.) On May 5, 2020, the Commissioner issued a letter to Plaintiff approving his claim for 15 benefits and awarding him $143,511.00 in back payments beginning August 2014. (See Doc. 24 at 16 3; Doc. 24-3 at 1–2.) On July 1, 2020, Counsel filed a motion for attorney’s fees in the amount of 17 $23,400.00, equal to 16.3% of Plaintiff’s back benefits, with an offset of $3,400.00 for EAJA fees 18 already awarded.2 (Doc. 23.) It is Counsel’s section 406(b) motion for attorney’s fees that is 19 currently pending before the Court. 20 III. DISCUSSION 21 Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which 22 they have successfully represented social security claimants. Section 406(b) provides the following: 23 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and 24 allow as part of its judgment a reasonable fee for such representation, not in excess 25 of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify 26 the amount of such fee for payment to such attorney out of, and not in addition to, 27 2 Counsel contends that her request for $23,400.00 represents “a little more than 17% of the past due benefits paid or 28 payable” to Plaintiff. (Doc. 23 at 4–5.) The evidence before the Court, however, shows that Counsel’s fee request 1 2 42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting 3 provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits 4 awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 5 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The 6 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee 7 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 8 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of 9 fee awards under section 406(b) is to provide adequate incentive to represent claimants while 10 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. 11 Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 12 807.1 13 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 14 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (Section 406(b) does not displace 15 contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to 16 review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . 17 the attorney for the successful claimant must show that the fee sought is reasonable for the services 18 rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that section 406(b) “does not 19 specify how courts should determine whether a requested fee is reasonable” but “provides only that 20 the fee must not exceed 25% of the past-due benefits awarded”). 21 Generally, “a district court charged with determining a reasonable fee award under 22 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking 23 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at 24 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified 25 several factors that may be considered in determining whether a fee award under a contingent-fee 26 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the 27 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in 28 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 1 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 2 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent 3 cases. Id. (citing Gisbrecht, 535 U.S. at 807–08). 4 Here, the fee agreement between Plaintiff and the Law Offices of Lawrence D. Rohlfing, 5 signed by Plaintiff and Counsel, provides: 6 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% 7 of the past due benefits awarded upon reversal of any unfavorable ALJ decision for work before the court. Attorney shall seek compensation under the 8 [EAJA] and such amount shall credit to the client for fees otherwise payable for 9 court work. 10 (Doc. 24-1 (signed February 17, 2018) (emphasis in original).) 11 The Court has considered the character of Counsel’s representation of Plaintiff and the good 12 results achieved by Counsel, which included an award of benefits. Counsel and her paralegals spent 13 18.9 hours representing Plaintiff, ultimately gaining a favorable decision in that the Commissioner 14 stipulated to remand the decision back to the agency for reconsideration. (Doc. 24 at 3, 12; Doc. 15 23-4 (time sheets accounting for 16.10 attorney hours and 2.80 paralegal hours spent representing 16 Plaintiff before this Court).) There is no indication that a reduction of the award is warranted due 17 to any substandard performance by Counsel as Counsel secured a successful result for Plaintiff. 18 There is also no evidence that counsel engaged in any dilatory conduct resulting in delay. 19 Although the accepted range in the Fresno Division for attorneys like Counsel with less than 20 ten years of experience (see Doc. 24 at 13; Doc. 24-5) is between $175 and $300 per hour in non- 21 contingency cases, see Silvester v. Harris, No. 1:11–CV–2137 AWI SAB, 2014 WL 7239371 at *4 22 (E.D. Cal. Dec. 17, 2014), here the effective hourly rate requested equals $1,453.42 per hour. This 23 hourly rate is not excessive when compared to what the Ninth Circuit has approved in cases 24 involving social security contingency fee arrangements. See Crawford, 586 F.3d 1142, 1153 (9th 25 Cir. 2009) (explaining that the majority opinion found reasonable effective hourly rates equaling 26 $519, $875, and $902) (J. Clifton, concurring in part and dissenting in part); see also Thomas v. 27 Colvin, No. 1:11−cv−01291−SKO, 2015 WL 1529331, at *2−3 (E.D. Cal. Apr. 3, 2015) (upholding 28 an effective hourly rate of $1,093.22 for 40.8 hours of work); Jamieson v. Astrue, No. 1:09CV0490 1 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (upholding an effective hourly rate of 2 $1,169.49 for 29.5 hours of work); Palos v. Colvin, No. CV 15−04261−DTB, 2016 WL 5110243, 3 at *2 (C.D. Cal. Sept. 20, 2016) (upholding an effective hourly rate of $1,546.39 for 9.7 hours of 4 work); Villa v. Astrue, No. CIV−S−06−0846 GGH, 2010 WL 118454, at *1−2 (E.D. Cal. Jan. 7, 5 2010) (approving section 406(b) fees exceeding $1,000 per hour for 10.4 hours of work, and noting 6 that “[r]educing § 406(b) fees after Crawford is a dicey business”). Further, attorney’s fees in the 7 amount of $23,400.00 do not exceed (and are in fact less than) 25% of the past-due benefits awarded 8 and are not excessive in relation to the past-due award. See generally Ortega v. Comm’r of Soc. 9 Sec., No. 1:12–cv–01030–AWI–SAB, 2015 WL 5021646, at *3 (E.D. Cal. Aug. 21, 2015) (granting 10 petition for an award of attorney’s fees pursuant to section 406(b) in the amount of $24,350.00); 11 Thomas, 2015 WL 1529331, at *3 (granting petition for an award of attorney’s fees pursuant to 12 section 406(b) in the amount of $44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS, 2013 WL 13 6712552, at *2 (E.D. Cal. Dec. 19, 2013) (granting petition for an award of attorney’s fees pursuant 14 to section 406(b) in the amount of $20,577.57); Jamieson, 2011 WL 587096, at *2 (recommending 15 an award of attorney’s fees pursuant to section 406(b) in the amount of $34,500). 16 In making this determination, the Court recognizes the contingent-fee nature of this case and 17 Counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. “District courts 18 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases.” Hearn 19 v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (“Because attorneys like Mr. Sackett 20 contend with a substantial risk of loss in Title II cases, an effective hourly rate of only $450 in 21 successful cases does not provide a basis for this court to lower the fee to avoid a ‘windfall.’” 22 (quoting Gisbrecht, 535 U.S. at 807)). Attorneys who agree to represent claimants pursuant to a 23 contingent fee agreement assume the risk of receiving no compensation for their time and effort if 24 the action does not succeed. Id. Here, Counsel accepted substantial risk of loss in representing 25 Plaintiff, whose application had already been denied at the administrative level. Plaintiff agreed to 26 the contingent fee. (See Doc. 24-1.) Working efficiently and effectively, Counsel secured a 27 stipulated remand, and ultimately, the award of substantial benefits to Plaintiff. (See Docs. 19, 20, 28 24-3.) 1 An award of attorney’s fees pursuant to section 406(b) in the amount of $23,400.00 is, 2 therefore, appropriate. An award of section 406(b) fees, however, must be offset by any prior award 3 of attorney’s fees granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. As 4 Plaintiff was previously awarded $3,400.00 in fees pursuant to the EAJA, Counsel shall refund this 5 amount to Plaintiff. 6 IV. CONCLUSION AND ORDER 7 For the reasons stated above, the Court concludes that the fees sought by Counsel pursuant 8 to section 406(b) are reasonable. Accordingly, IT IS ORDERED that: 9 1. Counsel’s unopposed motion for an award of attorney’s fees pursuant to 42 U.S.C. § 10 406(b) in the amount of $23,400.00 (Doc. 24) is granted; 11 2. Counsel shall refund to Plaintiff $3,400.00 of the section 406(b) fees awarded as an 12 offset for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d) (Doc. 23); and 13 3. Counsel for Plaintiff shall file on the Court’s docket proof of service of this order 14 upon Plaintiff at his current or last known address. 15 IT IS SO ORDERED. 16
Sheila K. Oberto 17 Dated: August 4, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 18
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