1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC TIETJEN, No. 2:20-CV-2065-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 has been entered pursuant to the parties’ stipulation for a voluntary remand. See 21 ECF No. 23. Pending before the Court is Plaintiff’s counsel’s motion for an award of attorney’s 22 fees in the amount of $17,709.78 under 42 U.S.C. § 406(b). See ECF No. 28. Plaintiff was 23 provided notice of counsel’s motion 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 October 9, 2020, 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. 28- 6 1. Plaintiff initiated this action for judicial review of an unfavorable administrative decision on 7 October 15, 2020. See ECF No. 1. Pursuant to stipulation of the parties, the matter was 8 remanded on October 27, 2021, for further administrative proceedings. See ECF Nos. 22 and 23. 9 Also pursuant to the stipulation of the parties, Plaintiff was awarded $8,500.00 in attorney’s fees 10 and costs under the Equal Access to Justice Act (EAJA), payable to Plaintiff less any offsets to be 11 determined by the government. See ECF No. 26. On August 15, 2022, the agency provided 12 Plaintiff notice that $17,709.78 had been withheld from past-due benefits to pay counsel, 13 reflecting 25% of a total award of past-due benefits in the amount of $70,839.10. See ECF No. 14 28-2. 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 who was represented before the court by an attorney, the court 19 may determine and allow as part of its judgment a reasonable fee for such representation, not in 20 excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of 21 such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such 22 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 1 Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due 2 benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen 3 v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). 4 The 25 percent statutory maximum fee is not an automatic entitlement, and the 5 court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535 6 U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful 7 claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In 8 determining the reasonableness of fees sought, the district court must respect ‘the primacy of 9 lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then 10 testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting 11 Gisbrecht, 535 U.S. at 793 and 808). 12 The Supreme Court has identified five factors that may be considered in 13 determining whether a fee award under a contingent-fee agreement is unreasonable and therefore 14 subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. 15 at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the 16 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 17 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 18 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 19 counsel’s regular hourly billing charge for non-contingent cases. See id. 20 Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s 21 fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796. 22 Plaintiff’s counsel’s motion as unopposed. In this case, having considered the 23 factors above, the Court finds Plaintiff’s counsel’s request reasonable given the fee agreement 24 with Plaintiff, the results achieved, and the lack of any evidence of dilatory conduct designed to 25 increase past-due benefits. In granting Plaintiff’s counsel’s motion, the Court notes that the 26 Commissioner stipulated to an award of $8,500.00 under the EAJA, which Plaintiff’s counsel 27 appropriately asks be ordered to offset any award requested in the current motion. 28 / / / 1 Il. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. Plaintiff's counsel’s motion, ECF No. 28, is granted and counsel is 4 | awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $17,709.78, paid to counsel by the 5 || Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld by the 6 || agency, to the extent such benefits have not already been paid to Plaintiff; and 7 2. Counsel shall reimburse to Plaintiff $8,500.00 previously paid to counsel 8 | under the EAJA. 9 10 | Dated: August 22, 2023 Ss..c0_,

DENNIS M. COTA

2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28