1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAULA TRISTAN, No. 2:21-cv-1609-KJN 12 Plaintiff, ORDER 13 v. (ECF No. 17.) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 On July 17, 2023, counsel for plaintiff filed a motion for an award of attorney’s fees 18 pursuant to 42 U.S.C. §1383(d)(2)(B).1 (ECF No. 17.) On July 18, 2023, the court directed the 19 Commissioner to file an advisory response to counsel’s motion within 28 days of the order, and 20 permitted a reply from plaintiff within 14 days thereafter. (ECF No. 18.) On August 15, 2023, 21 the Commissioner filed a response neither supporting nor opposing counsel’s request; plaintiff 22 did not file a reply. (ECF No. 19.) 23 For the reasons set forth below, counsel’s motion for an award of attorney’s fees is 24 granted in the amount of $14,389.00. Counsel shall reimburse plaintiff the $1,600.00 in fees 25 already awarded pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d). 26 /// 27 1 This motion was referred to the undersigned based on the consent of all parties under 28 U.S.C. 28 § 636(c). (ECF Nos. 6, 7, 10.) 1 Background 2 Plaintiff brought the underlying action seeking judicial review of a final administrative 3 decision denying her claim for Supplemental Security Income under Title XVI of the Social 4 Security Act. (ECF No. 1.) The parties stipulated to a voluntary remand of this case for further 5 administrative proceedings; the court remanded and entered a final judgment in favor of plaintiff 6 and against defendant. (ECF No. 11, 12.) The parties stipulated to and the court granted an 7 award of $1,600.00 in attorney fees under the EAJA. (ECF Nos. 15, 16.) 8 On June 6, 2023, the Commissioner issued a notice to plaintiff approving her claim for 9 benefits and awarding her $57,559.52 in back payments. (ECF No. 17 at 30.) On July 17, 2023, 10 counsel filed a motion for attorney's fees pursuant to 42 U.S.C. § 1383(d)(2)(B), requesting 11 $12,789.00, which, when combined with the $1,600.00 already received by administrative 12 counsel, is just under 25% of plaintiff's back benefits. (Id. at 4.) 13 Discussion 14 Title 42 grants authority for an attorney to seek an award of attorney’s fees for work 15 performed in a Social Security case where the claimant is awarded SSI benefits under Title XVI. 16 In relevant part, Section 1383 provides as follows: 17 [I]f the claimant is determined to be entitled to past-due benefits under this subchapter and the person representing the claimant is an 18 attorney, the Commissioner shall pay out of such past-due benefits to such attorney an amount equal to the lesser of: 19 (i) so much of the maximum fee as does not exceed 25 percent of 20 such past-due benefits (as determined before any applicable reduction under subsection (g) and reduced by the amount of any 21 reduction in benefits under this subchapter or subchapter II pursuant to section 1320a-6(a) of this title), or 22 (ii) the amount of past-due benefits available after any applicable 23 reductions . . . . 24 42 U.S.C. § 1383(d)(2)(B). In addition, "[t]he provisions of section 406 . . . shall apply to this 25 part to the same extent as they apply in the case of subchapter II [of this chapter]." 42 U.S.C. 26 § 1383(d)(2)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 27 controls fees awarded for representation of Social Security claimants). 28 “In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988, the 1 fee is paid by the claimant out of the past-due benefits awarded; the losing party is not responsible 2 for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc). The 3 Commissioner typically does not act as an adversary, but “plays a part in the fee determination 4 resembling that of a trustee for the claimants.” Gisbrecht, 535 U.S. at 798 n.6. Thus, “[b]ecause 5 the [Commissioner] has no direct interest in how much of the award goes to counsel and how 6 much to the disabled person, the district court has an affirmative duty to assure that the 7 reasonableness of the fee is established.” Crawford, 586 F.3d at 1149. 8 In reviewing the fee request, the district court is to look first to the parties’ contingency- 9 fee agreement, then test it for reasonableness—always respecting “the primacy of lawful attorney- 10 client fee agreements . . . .” Gisbrecht, 535 U.S. at 793 (noting that courts following this method 11 have “appropriately reduced the attorney’s recovery based on the character of the representation 12 and the results the representative achieved.”). To this end, the Ninth Circuit instructs: 13 A fee resulting from a contingent-fee agreement is unreasonable, and thus subject to reduction by the court, if the attorney provided 14 substandard representation or engaged in dilatory conduct in order to increase the accrued amount of past-due benefits, or if the 15 “benefits are large in comparison to the amount of time counsel spent on the case. [A]s an aid to the court’s assessment of the 16 reasonableness of the fee yielded by the fee agreement,” but “not as a basis for satellite litigation,” the court may require counsel to 17 provide a record of the hours worked and counsel’s regular hourly billing charge for noncontingent cases. The attorney bears the 18 burden of establishing that the fee sought is reasonable. 19 Crawford, 586 F.3d at 1148 (citations omitted). The attorney bears the burden of establishing the 20 reasonableness of the fee. Gisbrecht, 535 U.S. at 807 fn. 17. 21 In support of the motion for attorney’s fees under 42 U.S.C. § 1383(d)(2)(B), plaintiff’s 22 counsel attached plaintiff’s attorney-client agreement, which provided for a contingent fee of up 23 to 25% of any past due benefits. (ECF No. 17 at 13.) The Notice of Award indicates plaintiff 24 was awarded $57,559.52 in past due benefits, 25% of which ($14,389.88) was withheld by the 25 Commissioner for payment of counsel’s fee. (Id.) Counsel now seeks a fee of $14,389.00. The 26 Commissioner neither assents nor objects to the fee request, and takes no position on the 27 reasonableness of the request. (ECF No. 19.) 28 The court finds counsel’s fee request here to be reasonable. As an initial matter, 1 agreements providing for fees of 25% of past due benefits are the “most common fee arrangement 2 between attorneys and Social Security claimants.” Crawford, 586 F.3d at 1147. Counsel’s 3 request meets the 25% maximum outlined in 42 U.S.C. § 1383(d)(2)(B) and the fee-agreement 4 ($14,389.00 is approximately 25% of plaintiff’s past due benefits of $57,559.00).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAULA TRISTAN, No. 2:21-cv-1609-KJN 12 Plaintiff, ORDER 13 v. (ECF No. 17.) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 On July 17, 2023, counsel for plaintiff filed a motion for an award of attorney’s fees 18 pursuant to 42 U.S.C. §1383(d)(2)(B).1 (ECF No. 17.) On July 18, 2023, the court directed the 19 Commissioner to file an advisory response to counsel’s motion within 28 days of the order, and 20 permitted a reply from plaintiff within 14 days thereafter. (ECF No. 18.) On August 15, 2023, 21 the Commissioner filed a response neither supporting nor opposing counsel’s request; plaintiff 22 did not file a reply. (ECF No. 19.) 23 For the reasons set forth below, counsel’s motion for an award of attorney’s fees is 24 granted in the amount of $14,389.00. Counsel shall reimburse plaintiff the $1,600.00 in fees 25 already awarded pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d). 26 /// 27 1 This motion was referred to the undersigned based on the consent of all parties under 28 U.S.C. 28 § 636(c). (ECF Nos. 6, 7, 10.) 1 Background 2 Plaintiff brought the underlying action seeking judicial review of a final administrative 3 decision denying her claim for Supplemental Security Income under Title XVI of the Social 4 Security Act. (ECF No. 1.) The parties stipulated to a voluntary remand of this case for further 5 administrative proceedings; the court remanded and entered a final judgment in favor of plaintiff 6 and against defendant. (ECF No. 11, 12.) The parties stipulated to and the court granted an 7 award of $1,600.00 in attorney fees under the EAJA. (ECF Nos. 15, 16.) 8 On June 6, 2023, the Commissioner issued a notice to plaintiff approving her claim for 9 benefits and awarding her $57,559.52 in back payments. (ECF No. 17 at 30.) On July 17, 2023, 10 counsel filed a motion for attorney's fees pursuant to 42 U.S.C. § 1383(d)(2)(B), requesting 11 $12,789.00, which, when combined with the $1,600.00 already received by administrative 12 counsel, is just under 25% of plaintiff's back benefits. (Id. at 4.) 13 Discussion 14 Title 42 grants authority for an attorney to seek an award of attorney’s fees for work 15 performed in a Social Security case where the claimant is awarded SSI benefits under Title XVI. 16 In relevant part, Section 1383 provides as follows: 17 [I]f the claimant is determined to be entitled to past-due benefits under this subchapter and the person representing the claimant is an 18 attorney, the Commissioner shall pay out of such past-due benefits to such attorney an amount equal to the lesser of: 19 (i) so much of the maximum fee as does not exceed 25 percent of 20 such past-due benefits (as determined before any applicable reduction under subsection (g) and reduced by the amount of any 21 reduction in benefits under this subchapter or subchapter II pursuant to section 1320a-6(a) of this title), or 22 (ii) the amount of past-due benefits available after any applicable 23 reductions . . . . 24 42 U.S.C. § 1383(d)(2)(B). In addition, "[t]he provisions of section 406 . . . shall apply to this 25 part to the same extent as they apply in the case of subchapter II [of this chapter]." 42 U.S.C. 26 § 1383(d)(2)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 27 controls fees awarded for representation of Social Security claimants). 28 “In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988, the 1 fee is paid by the claimant out of the past-due benefits awarded; the losing party is not responsible 2 for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc). The 3 Commissioner typically does not act as an adversary, but “plays a part in the fee determination 4 resembling that of a trustee for the claimants.” Gisbrecht, 535 U.S. at 798 n.6. Thus, “[b]ecause 5 the [Commissioner] has no direct interest in how much of the award goes to counsel and how 6 much to the disabled person, the district court has an affirmative duty to assure that the 7 reasonableness of the fee is established.” Crawford, 586 F.3d at 1149. 8 In reviewing the fee request, the district court is to look first to the parties’ contingency- 9 fee agreement, then test it for reasonableness—always respecting “the primacy of lawful attorney- 10 client fee agreements . . . .” Gisbrecht, 535 U.S. at 793 (noting that courts following this method 11 have “appropriately reduced the attorney’s recovery based on the character of the representation 12 and the results the representative achieved.”). To this end, the Ninth Circuit instructs: 13 A fee resulting from a contingent-fee agreement is unreasonable, and thus subject to reduction by the court, if the attorney provided 14 substandard representation or engaged in dilatory conduct in order to increase the accrued amount of past-due benefits, or if the 15 “benefits are large in comparison to the amount of time counsel spent on the case. [A]s an aid to the court’s assessment of the 16 reasonableness of the fee yielded by the fee agreement,” but “not as a basis for satellite litigation,” the court may require counsel to 17 provide a record of the hours worked and counsel’s regular hourly billing charge for noncontingent cases. The attorney bears the 18 burden of establishing that the fee sought is reasonable. 19 Crawford, 586 F.3d at 1148 (citations omitted). The attorney bears the burden of establishing the 20 reasonableness of the fee. Gisbrecht, 535 U.S. at 807 fn. 17. 21 In support of the motion for attorney’s fees under 42 U.S.C. § 1383(d)(2)(B), plaintiff’s 22 counsel attached plaintiff’s attorney-client agreement, which provided for a contingent fee of up 23 to 25% of any past due benefits. (ECF No. 17 at 13.) The Notice of Award indicates plaintiff 24 was awarded $57,559.52 in past due benefits, 25% of which ($14,389.88) was withheld by the 25 Commissioner for payment of counsel’s fee. (Id.) Counsel now seeks a fee of $14,389.00. The 26 Commissioner neither assents nor objects to the fee request, and takes no position on the 27 reasonableness of the request. (ECF No. 19.) 28 The court finds counsel’s fee request here to be reasonable. As an initial matter, 1 agreements providing for fees of 25% of past due benefits are the “most common fee arrangement 2 between attorneys and Social Security claimants.” Crawford, 586 F.3d at 1147. Counsel’s 3 request meets the 25% maximum outlined in 42 U.S.C. § 1383(d)(2)(B) and the fee-agreement 4 ($14,389.00 is approximately 25% of plaintiff’s past due benefits of $57,559.00). Additionally, 5 neither the undersigned nor the Commissioner see any indication that plaintiff’s counsel 6 performed substandard work or unduly delayed the case; to the contrary, plaintiff’s counsel’s 7 work over several years ultimately resulted in a fully favorable decision for plaintiff and an award 8 of substantial benefits. While in normal cases the total amount sought could be considered 9 disproportionate to the amount of time plaintiff’s counsel spent on the case (9.1 hours, equating to 10 a rate of approximately $1,581.21 per hour), this amount is not inappropriate given the guidance 11 in Crawford. See, e.g., Langston v. Saul, 2020 WL 4501941, at *3 (E.D. Cal. Aug. 5, 2020) 12 (awarding fees on an effective hourly rate of $1,453.42, when counsel requested $23,400 for 13 16.10 hours of attorney work); Thomas v. Colvin, 2015 WL 1529331, at *2-3 (E.D. Cal. Apr. 3, 14 2015) (awarding fees on an effective hourly rate of $1,093.22 for 40.8 hours of work); Villa v. 15 Astrue, 2010 WL 118454, at *1-2 (E.D. Cal. Jan. 7, 2010) (awarding fees on an hourly rate 16 exceeding $1,000, where counsel requested $4,569.25 for 5.2 hours of combined attorney and 17 paralegal work, and noting that “[r]educing § 406(b) fees after Crawford is a dicey business”). 18 Finally, it is important to note that counsel also assumed the risk of receiving no compensation, as 19 plaintiff’s application was denied three times at the administrative level. (ECF No. 3 at 2.) Thus, 20 the court finds the fee amount requested is reasonable in light of the several years of litigation and 21 the result achieved, as well as the lack of any evidence suggesting either dilatory conduct. 22 For these reasons, the court awards plaintiff’s counsel the requested amount of $14,389.00 23 in attorney’s fees under 42 U.S.C. § 1383(d)(2)(B); see also Hopkins v. Cohen, 390 U.S. 530 24 (1968) (finding that auxiliary back benefits, or benefits payable to the claimant’s dependents, are 25 included in the total amount of back benefits to be considered for purposes of attorney’s fees 26 under 42 U.S.C. § 1383(d)(2)(B)). The court directs that the full amount be paid to plaintiff’s 27 present counsel, who shall then be responsible for reimbursing to plaintiff the previously-awarded 28 EAJA fees. 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Counsel’s motion for attorney’s fees under 42 U.S.C. § 1383(d)(2)(B) (ECF No. 17) is 4 GRANTED; 5 2. Plaintiffs Counsel shall be paid the sum of $14,389.00 in attorney’s fees; and 6 3. Counsel is ordered to reimburse plaintiff $1,600.00 in previously-awarded EAJA fees. 7 || Dated: September 19, 2023 Foci) Aharon 9 KENDALL J. NE SD/AZ, tris.1609 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28