holding that a reduction of fees may be appropriate if 9 there were any delays or if the representation was substandard
How later courts described this case
- holding that a reduction of fees may be appropriate if 9 there were any delays or if the representation was substandard
Written by the judges who cited it.
The opinion
Case 2:21-cv-02727-RAO Document 27 Filed 11/07/22 Page 1 of 4 Page ID #:178
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 LESLIE ANN A.,1 Case No. CV 21-02727-RAO
12 Plaintiff,
13 v. AMENDED ORDER GRANTING
COUNSEL’S MOTION FOR
14 KILOLO KIJAKAZI, Acting ATTORNEY’S FEES PURSUANT
Commissioner of Social Security, TO 42 U.S.C. § 406(B) OF THE
15 SOCIAL SECURITY ACT
Defendant.
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Before the Court is a Motion for Attorney’s Fees Pursuant to 42 U.S.C.
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§ 406(b) of the Social Security Act (“Motion”) filed by counsel (“Counsel”) for
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Plaintiff Leslie Ann A. (“Plaintiff”). Dkt. No. 22. For the reasons stated below, the
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Court GRANTS Counsel’s Motion.
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I. BACKGROUND
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On March 30, 2021, Plaintiff filed a complaint in this Court challenging the
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Commissioner’s decision to deny her application for Supplemental Security Income
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(“SSI”) benefits and Disability Insurance Benefits (“DIB”). See generally Dkt. No.
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26 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil
27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United
28 States.
Case 2:21-cv-02727-RAO Document 27 Filed 11/07/22 Page 2 of 4 Page ID #:179
1 1. On August 9, 2021, based on the parties’ Joint Stipulation to Voluntary Remand
2 Pursuant to Sentence Four of 42 U.S.C. § 405(g), the Court issued an order
3 remanding the matter to the Social Security Administration. Dkt. No. 17-18.
4 Judgment was entered the same day. Dkt. No. 19.
5 The Court later entered an order granting the parties’ Stipulation for Award of
6 Attorney’s Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
7 § 2412(d). Dkt. No. 20. Pursuant to that order, the Court awarded Counsel $1,000.00
8 in EAJA fees. Dkt. No. 21.
9 On May 10, 2022, the Social Security Administration sent Plaintiff a Notice of
10 Decision – Partially Favorable. Dkt. No. 22-2. And on May 21, 2022, The Social
11 Security Administration sent Plaintiff a Notice of Award informing Plaintiff that
12 $11,301.78 of the past-due benefits had been withheld to pay her representative.2
13 Dkt. No. 22-3 at 4.
14 In the Motion, Counsel requests $10,000.00 of the past-due benefits awarded
15 to Plaintiff for attorney’s fees pursuant to 42 U.S.C. § 406(b), which represents less
16 than 25 percent of the past-due benefits. Mot. at 1. The Commissioner filed a
17 Response to the Motion but did not take a position on the reasonableness of the
18 request. Dkt. No. 25.
19 II. DISCUSSION
20 A. 42 U.S.C. §406(b) Fees
21 An attorney who represents a Social Security benefits claimant in court may
22 be awarded “a reasonable fee . . . not in excess of 25 percent of the total of the past-
23 due benefits” awarded to the claimant, payable “out of, and not in addition to, the
24 amount of such past-due benefits.” 42 U.S.C. § 406(b)(1)(A). Attorneys may not
25 obtain additional fees based on a claimant’s continuing entitlement to benefits. Id.
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2 The Notice of Award does not state the total amount of past-due benefits that
Plaintiff will receive. However, assuming $11,301.78 represents 25 percent of the
28 total award, Plaintiff’s total past-due benefits equals approximately $45,207.12.
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Case 2:21-cv-02727-RAO Document 27 Filed 11/07/22 Page 3 of 4 Page ID #:180
1 In Crawford v. Astrue, the Ninth Circuit addressed the calculation of attorney
2 fees, stating that “[a] district court charged with determining a reasonable fee award
3 under § 406(b) must respect . . . ‘lawful attorney-client fee agreements . . . looking
4 first to the contingent-fee agreement, then testing it for reasonableness.’” 586 F.3d
5 1142, 1148 (9th Cir. 2009) (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.
6 Ct. 1817, 152 L. Ed. 2d 996 (2002)). However, “the court may properly reduce the
7 fee for substandard performance, delay, or benefits that are not in proportion to the
8 time spent on the case.” Crawford, 586 F.3d at 1151.
9 Attached to the Motion, Counsel provides a summary of hours indicating that
10 Counsel’s firm spent a total of 5.62 hours on this matter, a combination of 3.52 hours
11 of attorney time and 2.1 hours of paralegal time. Mot. at 3; Dkt. No. 22-4.
12 Approximately, .5 hours of this time was spent on work related to communications
13 with the Appeals Board and/or regional counsel. See Dkt. No. 22-4. The Court will
14 only consider time expended in federal court. See 42 U.S.C. § 406(b).
15 Several reasons indicate that Counsel’s request is reasonable and that the
16 Motion should be granted.
17 First, the Court notes that Plaintiff agreed, in writing, to Counsel receiving 25
18 percent of any back pay awarded, contingent, of course, upon a favorable outcome.3
19 See Dkt. No. 22-1. Plaintiff was ultimately awarded back payments. By contract,
20 Counsel is entitled to up to 25 percent of the amount of those back payments but is
21 seeking slightly less than the full 25 percent. Voluntarily requesting less than the
22 allowable 25 percent is a factor in the reasonableness analysis. See Crawford, 586
23 F.3d at 1152 (considering that counsel had voluntarily reduced the fees from the
24 allowable 25 percent in analyzing whether the attorney enjoyed a “windfall”); Wenzel
25 v. Colvin, No. EDCV 11-0338-JEM, 2014 WL 3810247, at *3 (C.D. Cal. Aug. 1,
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3 In contracting with Plaintiff on a contingency basis, Counsel assumed the risk of
nonpayment, and would receive the 25-percent fee only if Plaintiff received benefits
28 by a decision of the Social Security Administration or by judgment of this Court.
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Case 2:21-cv-02727-RAO Document 27 Filed 11/07/22 Page 4 of 4 Page ID #:181
1 2014) (“Taking less than the full 25% recovery obviously makes the high de facto
2 hourly rates more reasonable.”).
3 Second, the Court recognizes that Counsel obtained a favorable result for
4 Plaintiff, i.e., a stipulated remand to the Commissioner for further administrative
5 proceedings, and an ultimate award of retroactive benefits.
6 Third, neither the Commissioner nor Plaintiff alleges that Counsel was
7 responsible for any delays, or that the quality of representation was substandard. See
8 Gisbrecht, 535 U.S. at 808 (holding that a reduction of fees may be appropriate if
9 there were any delays or if the representation was substandard).
10 Fourth, Plaintiff has been served with a copy of the Motion, Mot. at 2, 16, as
11 well as the Court’s August 1, 2022 Order, providing instructions on how Plaintiff can
12 object to the instant Motion, see Dkt. No. 23. Plaintiff has not filed any objections
13 or other comments or otherwise communicated with the Court.
14 B. EAJA Fees
15 An attorney must refund to the client EAJA fees received when the § 406(b)
16 award exceeds the EAJA fees. See Gisbrecht, 535 U.S. at 796. Here, Counsel
17 received $1,000.00 in EAJA fees and will be awarded $10,000.00 in § 406(b) fees.
18 Since Counsel will receive a § 406(b) fee larger than the EAJA fees, Counsel must
19 reimburse the full EAJA fees to Plaintiff.
20 III. CONCLUSION
21 Consistent with the foregoing, IT IS ORDERED that Counsel’s Motion for
22 Attorney’s Fees in the amount of $10,000.00 is GRANTED. IT IS FURTHER
23 ORDERED that Counsel shall reimburse Plaintiff the amount of $1,000.00 for EAJA
24 fees previously paid by the Commissioner.
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26 DATED: November 7, 2022
/s/
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ROZELLA A. OLIVER
28 UNITED STATES MAGISTRATE JUDGE
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