1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONDA LEE LENOX, No. 2:19-CV-1195-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

(g). 20 Final judgement was entered on March 8, 2021. See ECF No. 20. Pending before the Court is 21 Plaintiff’s counsel’s amended motion for an award of attorney’s fees in the amount of $12,600.00 22 under

(b). See ECF No. 25. 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 June 27, 2019, 3 contingent fee agreement whereby Plaintiff agreed to pay counsel 25% of all past-due benefits 4 awarded by the agency. See ECF No. 25-3. Plaintiff initiated this action for judicial review of an 5 unfavorable administrative decision on June 28, 2019. See ECF No. 1. Following briefing on the 6 merits, the Court issued a memorandum opinion and order and the matter was remanded on 7 March 8, 2021, for further administrative proceedings. See ECF Nos. 19 and 20. Pursuant to 8 stipulation, Plaintiff was previously awarded $2,902.10 in attorney’s fees and costs under the 9 Equal Access to Justice Act (EAJA), payable to Plaintiff less any offsets to be determined by the 10 government. See ECF No. 23. 11 On July 8, 2021, the agency provided Plaintiff notice that her application had been 12 granted, that she was awarded $62,518.52 in past-due benefits, and that $15,629.63 had been 13 withheld, representing 25% due to counsel pursuant to the fee agreement. See ECF No 25-2. 14 Plaintiff’s counsel now seeks a reduced amount of the amount withheld by the agency – 15 $12,600.00 – and agrees to reimburse Plaintiff the amount previously paid in EAJA fees and 16 costs. 17 18 II. DISCUSSION 19 Under the Social Security Act, “[w]henever a court renders a judgment favorable 20 to a claimant under this subchapter who was represented before the court by an attorney, the court 21 may determine and allow as part of its judgment a reasonable fee for such representation, not in 22 excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of 23 such judgment. . . .”

(b)(1)(A). No other fee may be payable or certified for such 24 representation except as allowed in this provision. See

25 A remand constitutes a “favorable judgment” under § 406(b). See Shalala v. 26 Schaefer,

(1993). While the Ninth Circuit has not directly addressed the 27 issue, all other circuits to address the issue have concluded that the district court is authorized to 28 award fees under § 406(b) when it remands for further proceedings and, following remand, the 1 claimant is awarded past-due benefits. See Garcia v. Astrue,

(C.D.

). Limiting § 406(b) awards to cases in which the district court itself awards past-due 3 benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen 4 v. Comm’r of Soc. Sec.,

, 1277 (11th Cir. 2006). 5 The 25 percent statutory maximum fee is not an automatic entitlement, and the 6 court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535

, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful 8 claimant must show that the fee sought is reasonable for the services rendered.”

. “In 9 determining the reasonableness of fees sought, the district court must respect ‘the primacy of 10 lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then 11 testing it for reasonableness.’” Crawford v. Astrue,

(9th Cir. 2009) (quoting 12 Gisbrecht, 535 U.S. at 793 and 808). 13 The Supreme Court has identified five factors that may be considered in 14 determining whether a fee award under a contingent-fee agreement is unreasonable and therefore 15 subject to reduction by the court. See Crawford,

-52 (citing Gisbrecht,

at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the 17 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 18 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 19 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 20 counsel’s regular hourly billing charge for non-contingent cases. See id. 21 Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s 22 fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796. 23 The Commissioner has not filed a response to Plaintiff’s counsel’s motion. In this 24 case, having considered the factors above, the Court finds Plaintiff’s counsel’s request reasonable 25 given the fee agreement with Plaintiff, the results achieved, and the lack of any evidence of 26 dilatory conduct designed to increase past-due benefits. In making this finding, the Court notes 27 that counsel has previously been awarded $2,902.10 under the EAJA, which Plaintiff’s counsel 28 appropriately asks be ordered to offset any award requested in the current motion. 1 I. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff's counsel’s motion, ECF No. 25, is granted and counsel is 4 | awarded fees pursuant to

(b) in the amount of $12,600.00, paid to counsel by the 5 | Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld on 6 | July 8, 2021, to the extent such benefits have not already been paid to Plaintiff; and 7 2. Counsel shall reimburse to Plaintiff $2,902.10 previously paid to counsel 8 | under the EAJA. 9 10 || Dated: December 10, 2021 Ssvcqo_ DENNIS M. COTA 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28