Theresa Anne Perkins v. Nancy A. Berryhill

[6] UNITED STATES DISTRICT COURT [7] CENTRAL DISTRICT OF CALIFORNIA [9] 10 THERESA P.,1 Case No. EDCV 18-529-KK [11] Plaintiff, 12 v. ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO 42 13 U.S.C. § 406 (b) ANDREW SAUL,2 Commissioner of 14 Social Security, 15 Defendant. [17] 18 I. 19 INTRODUCTION 20 Plaintiff Theresa P. (“Plaintiff”)’s counsel, Omar Ortega of Pierre Pierre Law, 21 P.C. (“Counsel”), filed a Motion for Attorney Fees (“Motion”) pursuant to 42 U.S.C. 22 § 406(b) (“Section 406(b)”). The Motion seeks an award of $14,924.00 for 23 representing Plaintiff in an action to obtain disability insurance benefits, with a refund 24 to Plaintiff of $9,103.50 for the Equal Access to Justice Act (“EAJA”) fees previously [25] 26 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 27 Management of the Judicial Conference of the United States. 1 awarded. The parties have consented to the jurisdiction of the undersigned United 2 States Magistrate Judge, pursuant to 28 U.S.C. § 636 (c). For the reasons stated below, 3 the Court GRANTS the Motion. 4 II. 5 RELEVANT BACKGROUND 6 On March 15, 2018, Plaintiff filed the Complaint in this action. ECF Docket 7 No. (“Dkt.”) 1, Compl. Plaintiff alleged the Commissioner of the Social Security 8 Administration (“Defendant”) improperly denied Plaintiff’s application for Title II 9 Disability Insurance Benefits (“DIB”). Id. On January 18, 2019, the Court entered 10 Judgment reversing the decision of Defendant and remanding the case for further 11 administrative proceedings. Dkt. 22, Order; Dkt. 23, Judgment. 12 On May 29, 2019, the Court issued an order granting Counsel’s Motion for 13 EAJA Fees awarding fees to Counsel in the amount of $9,103.50. Dkt. 27, Order 14 Granting EAJA Fees. 15 On June 17, 2020, Counsel filed the instant Motion pursuant to Section 406(b) 16 seeking attorney fees in the amount of $14,924.00. Dkt. 28, Mot. Counsel states 69.8 17 hours of attorney time were spent representing Plaintiff in federal court. Dkt. 28-2, 18 Declaration of Eddy Pierre Pierre (“Pierre Decl.”), ¶ 14, Ex. C. Counsel seeks 19 compensation pursuant to a contingency agreement dated March 9, 2018, which 20 provides that if Plaintiff prevails in federal court, Counsel “may request up to twenty21 five percent (25%) of the past due benefits.” Id., ¶ 6 , Ex. A. 22 On June 18, 2020, Counsel served Plaintiff with the Motion and informed her 23 that she had a right to file a response to the Motion within fourteen days of receipt of 24 her copy of the Motion. Id., ¶ 19 ; Dkt. 30. Plaintiff received the Motion on June 20, 25 2020, see dkt. 30, but Plaintiff has not filed a response. 26 On July 7, 2020, Defendant filed a Response to the Motion. Dkt. 29. 27 Defendant provided an analysis of the fee request but “takes no position on the 1 The matter thus stands submitted. 2 III. 3 DISCUSSION 4 A. APPLICABLE LAW 5 Pursuant to Section 406(b): 6 Whenever a court renders a judgment favorable to a claimant under this 7 subchapter who was represented before the court by an attorney, the 8 court may determine and allow as part of its judgment a reasonable fee 9 for such representation, not in excess of 25 percent of the total of the 10 past-due benefits to which the claimant is entitled by reason of such 11 judgment, and the Commissioner of Social Security may . . . certify the 12 amount of such fee for payment to such attorney out of, and not in 13 addition to, the amount of such past-due benefits. [14] 42 U.S.C. § 406 (b)(1)(A). Thus, “a prevailing [disability] claimant’s [attorney’s] fees 15 are payable only out of the benefits recovered; in amount, such fees may not exceed 16 25 percent of past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 792 , 122 S. Ct. 17 1817 , 152 L. Ed. 2d 996 (2002). 18 Where a claimant entered into a contingent fee agreement with counsel, a court 19 must apply Section 406(b) “to control, not to displace, fee agreements between Social 20 Security benefits claimants and their counsel.” Id. at 793 . A court should not use a 21 “lodestar method,” under which a district court “determines a reasonable fee by 22 multiplying the reasonable hourly rate by the number of hours reasonably expended 23 on the case.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc). 24 Rather, where the claimant and counsel entered into a lawful contingent fee 25 agreement, courts that use the “lodestar” method as the starting point to determine 26 the reasonableness of fees requested under Section 406(b) improperly “reject the 27 primacy of lawful attorney-client fee agreements.” Gisbrecht, 535 U.S. at 793 . Thus, 1 courts should not apply lodestar rules in cases where the claimant and counsel reached 2 a contingent fee agreement because: 3 [t]he lodestar method under-compensates attorneys for the risk they 4 assume in representing [social security] claimants and ordinarily produces 5 remarkably smaller fees than would be produced by starting with the 6 contingent-fee agreement. A district court’s use of the lodestar to 7 determine a reasonable fee thus ultimately works to the disadvantage of 8 [social security] claimants who need counsel to recover any past-due 9 benefits at all. 10 Crawford, 586 F.3d at 1149 . 11 However, even in contingency fee cases, a court has “an affirmative duty to 12 assure that the reasonableness of the fee [asserted by counsel] is established.” Id. The 13 court must examine “whether the amount need be reduced, not whether the lodestar 14 amount should be enhanced.” Id. The court may consider factors such as the 15 character of the representation, the results achieved, the ratio between the amount of 16 any benefits awarded and the time expended, and any undue delay attributable to 17 counsel that caused an accumulation of back benefits in determining whether a lawful 18 contingent fee agreement is reasonable. See Gisbrecht, 535 U.S. at 808 ; Crawford, [19] 586 F.3d at 1151 . 20 Additionally, the Court must determine whether a previously awarded EAJA 21 fee should be refunded to Plaintiff in the event both Section 406(b) and EAJA fees 22 are awarded. “Congress harmonized fees payable by the [Agency] under EAJA with 23 fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in 24 this manner: Fee awards may be made under both prescriptions, but the claimant’s 25 attorney must ‘refun[d] to the claimant the amount of the smaller fee.’” Gisbrecht, [26] 535 U.S. at 796 . 27 /// 1 B. ANALYSIS 2 Here, Counsel seeks a reasonable fee under Section 406(b). Plaintiff retained 3 Counsel to represent her in federal court in her appeal from the administrative denial 4 of benefits and agreed to pay Counsel a contingent fee of twenty-five percent of any 5 past due benefits obtained for work performed in court. See Pierre Decl., Ex. A. 6 Consideration of the factors set forth in Gisbrecht and Crawford warrants no 7 reduction of the fee Counsel seeks. 8 The record discloses no issue regarding the quality or efficiency of Counsel’s 9 representation before this Court, or any misconduct or delay by Counsel. Counsel 10 obtained a favorable outcome for Plaintiff, ultimately resulting in a remand for further 11 administrative proceedings and an award of past due benefits. See dkt. 23, Judgment; 12 Pierre Decl., ¶¶ 10, 12, Ex. B. 13 In addition, a fee of $14,924.00 based on 69.8 hours of attorney time is 14 reasonable. See Pierre Decl., ¶¶ 14-17, Ex. C. The Court finds Counsel’s effective 15 hourly rate of approximately $214.073 reasonable under the circumstances. See Villa 16 v. Astrue, No. CIV S-06-0846 GGH, 2010 WL 118454 , at *1-2 (E.D. Cal. Jan. 7, 17 2010) (approving Section 406(b) fees exceeding $1,000.00 per hour, and noting 18 “[r]educing [Section] 406(b) fees after Crawford is a dicey business”). Further, post19 Gisbrecht decisions have approved contingency fee agreements yielding substantially 20 higher hourly rates to the rate Counsel seeks. See, e.g., Daniel v. Astrue, No. EDCV 21 04-01188-MAN, 2009 WL 1941632 , at *2-3 (C.D. Cal. July 2, 2009) (approving fees 22 amounting to $1,491.25 per hour); see also Palos v. Colvin, No. CV 15-04261-DTB, [23] 2016 WL 5110243 , at *2 (C.D. Cal. Sept. 20, 2016) (finding “an hourly rate of 24 $1,546.39 for attorney and paralegal services” is reasonable). Hence, in light of the 25 hours Counsel expended, the Section 406(b) fee award amount Counsel requests 26 would not represent an unfair windfall to Counsel. [27] 1 Additionally, nothing in the record suggests any overreaching in the making of 2 the fee agreement or any impropriety on the part of Counsel in representing Plaintiff. 3 Counsel assumed the risk of nonpayment inherent in a contingency agreement and 4 Counsel’s efforts proved successful for Plaintiff. Accordingly, the Court finds the 5 Section 406(b) fees Counsel requests reasonable. 6 IV. 7 ORDER 8 Based on the foregoing, IT IS HEREBY ORDERED (1) Counsel’s Motion 9 for Attorney Fees Pursuant to Section 406(b) is GRANTED; (2) Defendant is 10 directed to pay Counsel the sum of $14,924.00 with a reimbursement to Plaintiff for 11 EAJA fees previously awarded in the amount of $9,103.50. [12] 13 Dated: July 08, 2020 14 HONORABLE KENLY KIYA KATO United States Magistrate Judge