1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOANG TRONG LE, No. 2:19-CV-0751-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 was entered on March 31, 2021. See ECF No. 26. Pending before the Court is 21 Plaintiff’s counsel’s amended motion for an award of attorney’s fees in the amount of $10,313.62 22 under 42 U.S.C. § 406(b). See ECF No. 33. Plaintiff was provided notice of counsel’s motion 23 and has not filed any response thereto. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL HISTORY 2 Plaintiff’s representation in this case was provided by way of an August 22, 2019, 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. 33- 6 2. Plaintiff initiated this action for judicial review of an unfavorable administrative decision on 7 May 1, 2019. See ECF No. 1. Pursuant to this Court's written opinion, the matter was remanded 8 on March 31, 2021, for further administrative proceedings. See ECF Nos. 25 and 26. Pursuant to 9 the stipulation of the parties, Plaintiff was awarded $6,022.45 in attorney’s fees and costs under 10 the EAJA. See ECF No. 30. On January 15, 2024, the agency provided Plaintiff notice of a total 11 award of past-due benefits in the amount of $70,054.46. See ECF No. 33-1. 12 13 II. DISCUSSION 14 Under the Social Security Act, “[w]henever a court renders a judgment favorable 15 to a claimant under this subchapter who was represented before the court by an attorney, the court 16 may determine and allow as part of its judgment a reasonable fee for such representation, not in 17 excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of 18 such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such 19 representation except as allowed in this provision. See id. 20 A remand constitutes a “favorable judgment” under § 406(b). See Shalala v. 21 Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the 22 issue, all other circuits to address the issue have concluded that the district court is authorized to 23 award fees under § 406(b) when it remands for further proceedings and, following remand, the 24 claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D. 25 Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due 26 benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen 27 v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). 28 / / / 1 The 25 percent statutory maximum fee is not an automatic entitlement, and the 2 court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535 3 U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful 4 claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In 5 determining the reasonableness of fees sought, the district court must respect ‘the primacy of 6 lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then 7 testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting 8 Gisbrecht, 535 U.S. at 793 and 808). 9 The Supreme Court has identified five factors that may be considered in 10 determining whether a fee award under a contingent-fee agreement is unreasonable and therefore 11 subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. 12 at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the 13 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 14 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 15 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 16 counsel’s regular hourly billing charge for non-contingent cases. See id. 17 Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s 18 fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796. 19 The Commissioner has filed a response to Plaintiff’s counsel’s motion. This 20 filing, however, amounts to nothing more than a recitation of applicable caselaw and contains 21 nothing in the way of analysis specific to this case. In particular, the Commissioner’s response 22 does not set forth any reasons why the Court should deny, in whole or in part, counsel’s motion. 23 The Court, therefore, considers Plaintiff’s counsel’s motion as unopposed. 24 In this case, Plaintiff was awarded a total of $70,054.46 in past-due benefits. 25 Plaintiff's fee agreement with counsel allows for counsel to recover 25% of this amount, which is 26 $17,513.62. Plaintiff's counsel states that he was erroneously paid $7,200.00 by the agency out of 27 withheld funds. See ECF No. 33, pg. 6. Thus, counsel seeks the remainder – $10,313.62. 28 Having considered the factors above, the Court finds Plaintiff’s counsel’s request reasonable 1 | given the fee agreement with Plaintiff, the results achieved, and the lack of any evidence of 2 || dilatory conduct designed to increase past-due benefits. In making this finding, the Court notes 3 | that the Commissioner stipulated to an award of $6,022.45 under the EAJA, which Plaintiff's 4 || counsel appropriately asks be ordered to offset any award requested in the current motion. 5 6 Il. CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Plaintiff's counsel’s motion, ECF No. 33, is granted and counsel is 9 || awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $10,313.62, paid to counsel by the 10 || Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld by the 11 || agency, to the extent such benefits have not already been paid to Plaintiff; and 12 2. Counsel shall reimburse to Plaintiff $6,022.45 previously paid to counsel 13 || under the EAJA. 14 15 Dated: September 20, 2024 16 Sec 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28