1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAMMY BARDWELL, No. 2:18-CV-0293-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 28, 2019. See ECF No. 32. Pending before the Court is 21 Plaintiff’s counsel’s unopposed motion for an award of attorney’s fees in the amount of $6,412.00 22 under 42 U.S.C. § 406(b). See ECF No. 36. 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 a July 10, 2013, 3 contingent fee agreement whereby Plaintiff agreed to pay counsel 25% of all past-due benefits 4 awarded by the agency. See ECF No. 36-2, pg. 1. Plaintiff initiated this action for judicial 5 review of an unfavorable administrative decision on February 7, 2018. See ECF No. 1. Pursuant 6 to the parties’ stipulation, the matter was remanded on March 28, 2019, for further administrative 7 proceedings. See ECF No. 31. Also pursuant to the stipulation of the parties, Plaintiff was 8 awarded $3,750.00 in attorney’s fees and costs under the Equal Access to Justice Act (EAJA), 9 payable to Plaintiff less any offsets to be determined by the government. See ECF No. 35. On 10 June 23, 2020, the agency provided Plaintiff notice that her application had been granted and that 11 $6,412.00 was withheld, representing 25% due to counsel pursuant to the fee agreement. See 12 ECF No 36-1. While the exhibit provided by Plaintiff’s counsel does not reflect the total award 13 of past-due benefits, based on a 25% withholding yielding $6,412.00, the total award equaled 14 amount of $25,648.00. See id. 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, when such claimant was represented before the court by an 19 attorney, the court may determine and allow as part of its judgment a reasonable fee for such 20 representation, not in excess of 25 percent of the total past-due benefits to which the claimant is 21 entitled by reason of such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be 22 payable or certified for such 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 filed a response to Plaintiff’s counsel’s motion. This 22 filing, however, amounts to nothing more than a recitation of applicable caselaw and contains 23 nothing in the way of analysis specific to this case. In particular, the Commissioner’s response 24 does not set forth any reasons why the Court should deny, in whole or in part, counsel’s motion. 25 The Court, therefore, considers Plaintiff’s counsel’s motion as unopposed. In this case, having 26 considered the factors above, the Court finds Plaintiff’s counsel’s request reasonable given the fee 27 agreement with Plaintiff, the results achieved, and the lack of any evidence of dilatory conduct 28 designed to increase past-due benefits. In making this finding, the Court notes that the 1 | Commissioner stipulated to an award of $3,750.00 under the EAJA, which Plaintiffs counsel 2 | appropriately asks be ordered to offset any award requested in the current motion. 3 4 I. CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's counsel’s motion, ECF No. 36, is granted and counsel is 7 || awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $6,412.00, paid to counsel by the 8 | Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld on 9 | March 17, 2020, to the extent such benefits have not already been paid to Plaintiff; and 10 2. Counsel shall reimburse to Plaintiff $3,750.00 previously paid to counsel 11 under the EAJA. 12 13 || Dated: September 1, 2021 Ssvcqo_

DENNIS M. COTA

15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28