1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONICA L. CHUBA, No. 2:20-CV-0315-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 judgment was entered on November 2, 2021. See ECF No. 23-1, pg. 1. Pending before the 21 Court is Plaintiff’s counsel’s Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) in the 22 amount of $6,701.95. See ECF No. 23. Plaintiff was provided notice of counsel’s motion and 23 has not filed any response thereto. See id. at 3. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. PROCEDURAL HISTORY 2 Counsel began representing Plaintiff on February 3, 2020. ECF No. 23-1, pg.1. 3 Plaintiff and counsel had a contingent fee agreement requiring Plaintiff to pay counsel 25% of 4 any past-due benefits awarded by the agency, less any payment to counsel under the Equal 5 Access to Justice Act (EAJA). See ECF No. 23-3, pg. 1. Plaintiff with counsel initiated an action 6 for judicial review of an unfavorable administrative decision on February 11, 2020. See ECF No. 7 1. The matter was remanded to the agency via stipulation of the parties on November 2, 2020. 8 See ECF No. 22. Additionally, pursuant to stipulation of the parties, Plaintiff was awarded 9 $,2701.14 in attorney’s fees pursuant to the EAJA, minus any offsets determined by the 10 government. See ECF No. 21. Plaintiff’s counsel states that the agency presumably withheld 11 $10,569.95 for attorney’s fees, reflecting 25% of a total award of past-due benefits in the amount 12 of $42,279.80. See ECF No. 23-2, pg. 2. Plaintiff’s counsel requests a reduced fee of $6,701.95. 13 Id. 14 15 II. DISCUSSION 16 Under the Social Security Act, “[w]henever a court renders a judgment favorable 17 to a claimant under this subchapter who was represented before the court by an attorney, the court 18 may determine and allow as part of its judgment a reasonable fee for such representation, not in 19 excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of 20 such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such 21 representation except as allowed in this provision. See id. 22 A remand constitutes a “favorable judgment” under § 406(b). See Shalala v. 23 Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the 24 issue, all other circuits to address the issue have concluded that the district court is authorized to 25 award fees under § 406(b) when it remands for further proceedings and, following remand, the 26 claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D. 27 Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due 28 benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen 1 v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). 2 The 25 percent statutory maximum fee is not an automatic entitlement, and the 3 court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535 4 U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful 5 claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In 6 determining the reasonableness of fees sought, the district court must respect ‘the primacy of 7 lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then 8 testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting 9 Gisbrecht, 535 U.S. at 793 and 808). 10 The Supreme Court has identified five factors that may be considered in 11 determining whether a fee award under a contingent-fee agreement is unreasonable and therefore 12 subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. 13 at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the 14 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 15 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 16 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 17 counsel’s regular hourly billing charge for non-contingent cases. See id. 18 Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s 19 fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796. 20 The Commissioner has filed a response to Plaintiff’s counsel’s motion. This 21 filing, however, amounts to nothing more than a recitation of applicable caselaw and contains 22 nothing in the way of analysis specific to this case. In particular, the Commissioner’s response 23 does not set forth any reasons why the Court should deny, in whole or in part, counsel’s motion. 24 The Court, therefore, considers Plaintiff’s counsel’s motion as unopposed. In this case, having 25 considered the factors above, the Court finds Plaintiff’s counsel’s request of $6,701.95 reasonable 26 given the fee agreement with Plaintiff, the results achieved, and the lack of any evidence of 27 dilatory conduct designed to increase past-due benefits. In making this finding, the Court notes 28 1 | that the Commissioner stipulated to an award of $2,701.14 under the EAJA, which Plaintiff's 2 | counsel 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. 23, is granted and counsel is 7 || awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $6,701.95, paid to counsel by the 8 | Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld by the 9 | agency, to the extent such benefits have not already been paid to Plaintiff; and 10 2. Counsel shall reimburse to Plaintiff $2,701.14 previously paid to counsel 11 under the EAJA. 12 13 | Dated: July 29, 2022 Ssvcqo_

DENNIS M. COTA

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