Timothy Warren Rossow v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: June 24, 2026
• Docket: 2:24-cv-01597
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY WARREN ROSSOW, No. 2:24-CV-1597-DMC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brought this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Final judgement has been entered pursuant to the parties’ stipulation for a voluntary remand. See 21 ECF Nos. 11 and 12. Pending before the Court is Plaintiff’s counsel’s motion for an award of 22 attorney’s fees in the amount of $33,000.00 under 42 U.S.C. § 406(b). See ECF No. 15. Plaintiff 23 was provided notice of counsel’s motion and has not filed any response thereto. Defendant has 24 not filed an opposition. 25 / / / 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL HISTORY 2 Plaintiff’s representation in this case was provided by way of an April 17, 2024, 3 contingent fee agreement whereby Plaintiff agreed to pay counsel 25% of any past-due benefits 4 awarded by the agency if Plaintiff is awarded such benefits following a district court remand, less 5 amounts already paid to counsel under the Equal Access to Justice Act (EAJA). See ECF No. 15- 6 3. Plaintiff initiated this action for judicial review of an unfavorable administrative decision on 7 June 5, 2024. See ECF No. 1. Pursuant to stipulation of the parties, the matter was remanded on 8 August 15, 2024, for further administrative proceedings. See ECF Nos. 10, 11, and 12. Also 9 pursuant to the parties’ stipulation, Plaintiff was previously awarded $5,106.24 in attorney’s fees 10 and costs under the Equal Access to Justice Act (EAJA), payable to Plaintiff less any offsets to be 11 determined by the government. See ECF No. 14. 12 On December 28, 2025, the agency provided Plaintiff notice that past-due benefits 13 in the amount of $171,581.00 has been awarded and that a total of $42,895.25 has been withheld, 14 representing 25% of the total past-due benefits awarded. See ECF No. 15-1. 15 16 II. DISCUSSION 17 Under the Social Security Act, “[w]henever a court renders a judgment favorable 18 to a claimant under this subchapter who was represented before the court by an attorney, the court 19 may determine and allow as part of its judgment a reasonable fee for such representation, not in 20 excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of 21 such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such 22 representation except as allowed in this provision. See id. 23 A remand constitutes a “favorable judgment” under § 406(b). See Shalala v. 24 Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the 25 issue, all other circuits to address the issue have concluded that the district court is authorized to 26 award fees under § 406(b) when it remands for further proceedings and, following remand, the 27 claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D. 28 Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due 1 benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen 2 v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). 3 The 25 percent statutory maximum fee is not an automatic entitlement, and the 4 court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535 5 U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful 6 claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In 7 determining the reasonableness of fees sought, the district court must respect ‘the primacy of 8 lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then 9 testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting 10 Gisbrecht, 535 U.S. at 793 and 808). 11 The Supreme Court has identified five factors that may be considered in 12 determining whether a fee award under a contingent-fee agreement is unreasonable and therefore 13 subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. 14 at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the 15 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 16 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 17 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 18 counsel’s regular hourly billing charge for non-contingent cases. See id. 19 Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s 20 fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796. 21 The Commissioner has not filed a response to Plaintiff’s counsel’s motion. In this 22 case, having considered the factors above, the Court finds Plaintiff’s counsel’s request reasonable 23 given the fee agreement with Plaintiff, the results achieved, and the lack of any evidence of 24 dilatory conduct designed to increase past-due benefits. Notably, Plaintiff’s counsel is requesting 25 significantly less than 25% of past-due benefits awarded by the agency. Finally, in granting 26 Plaintiff’s counsel’s motion, the Court notes that the Commissioner stipulated to an award of 27 $5,106.24 under the EAJA, which Plaintiff’s counsel appropriately asks be ordered to offset any 28 award requested in the current motion. 1 Il. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. Plaintiff's counsel’s motion, ECF No. 15, is granted and counsel is 4 | awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $33,000.00, paid to counsel by the 5 || Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld by the 6 || agency, to the extent such benefits have not already been paid to Plaintiff, and to the extent 7 || counsel has not already been paid by the agency out of amounts withheld; and 8 2. Counsel shall reimburse to Plaintiff $5,106.24 previously paid to counsel 9 || under the EAJA. 10 11 | Dated: June 23, 2026 Ss..c0_, DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28