1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 VICTOR P. MONTOYA, Case No. 2:16-cv-00454-RFB-NJK

8 Plaintiff, ORDER

9 v.

10 LELAND DUDEK,1 Commissioner of Social 11 Security,

12 Defendant.

13

14 Before the Court is the Motion for Attorney Fees (ECF No. 26) filed by Plaintiff Victor 15 Montoya. For the following reasons, the Court grants the motion. 16 Plaintiff filed an application for a period of disability, disability insurance benefits, and 17 supplemental security income on August 15, 2012, alleging onset of disability from August 8, 18 2012. His claim was denied both initially and upon reconsideration. On January 28, 2015, Plaintiff 19 testified before an Administrative Law Judge (“ALJ”), who, in a decision issued February 24, 20 2015, analyzed the record and found that Plaintiff had not been under a disability, as defined in 21 the Social Security Act, from August 8, 2012, through the date of the decision. The ALJ’s decision 22 became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s 23 request for review. 24 On March 2, 2016, Mr. Montoya filed an application to proceed in forma pauperis and 25 complaint. ECF No. 1. Following the screening process, Mr. Montoya filed the operative Amended 26 27 28 1 Leland Dudek became the Acting Commissioner of Social Security on February 16, 2025, and is thus substituted as the defendant in this suit pursuant to Fed. R. Civ. P. 25(d). 1 Complaint. ECF Nos. 2, 4. On August 29, 2016, the Honorable Nancy Koppe, United States 2 Magistrate Judge, issued a Report and Recommendation (R&R). ECF No. 19. The R&R concluded 3 that the ALJ Judge incompletely applied the relevant legal standard and recommended the ALJ’s 4 decision be vacated and the case be remanded for further proceedings. Id. On November 3, 2016, 5 the Court adopted the R&R in full and remanded this case for further proceedings. ECF No. 20. 6 On January 9, 2017, the Parties stipulated that Mr. Montoya be awarded attorney fees of 7 $3,200 under the Equal Access to Justice Act (“EAJA”),

(d)(1)(A), as 8 “compensation for all legal services rendered on behalf of Plaintiff by counsel in connection with 9 this civil action.” ECF No. 22. This stipulation also provided that “payment of the agreed amount 10 shall constitute a complete release from, and bar to, any and all claims that Victor P. Montoya 11 and/or [his counsel] may have relating to EAJA attorney fees in connection with this action.”

12 However, the stipulation further explained this “award is without prejudice to the rights” of 13 Plaintiff’s counsel “to seek Social Security Act attorney’s fees under

(b).

The 14 Court entered this stipulation. ECF No. 23. On April 4, 2024, Plaintiff’s counsel filed the instant 15 Motion for Attorney’s fees. ECF No. 24. On April 22, 2025, Defendant, the Acting Commissioner 16 of Social Security, filed a response. On July 9, 2025, the parties filed a Joint Request for a Status 17 Report on the pending Motion. The Court’s Order on the pending Motion follows. 18 Mr. Montoya’s counsel seeks attorney’s fees under

(b) based upon the 19 contingency-fee agreement between Mr. Montoya and his counsel. Counsel seeks $19,000, which 20 is 25% of the past-due benefits, for 17.6 reported hours of work, and an order to reimburse Mr. 21 Montoya $3,200 for EAJA fees previously paid. 22 Courts may award fees under both the EAJA and § 406(b). Crawford v. Astrue,

1142, 1144 n.3 (9th Cir. 2009). Under § 406(b), the Court may award a fee of up to 25% of the 24 past-due benefits awarded.

(a)(2)(A)(ii)(I). “Courts must ‘approach [§ 406(b)] fee 25 determinations by looking first to the contingency-fee agreement, then testing it for 26 reasonableness.’” Crawford, 586 F.3d at 1149 (quoting Gisbrecht v. Barnhart,

, 808 27 (2002)). Counsel has accurately represented that the representation agreement here provides for 28 25% of the past-due benefits awarded. The Court finds this contingency fee reasonable under 1 | Gisbrecht based on the contingency nature of the representation, the time spent on the matter, and 2 | the result obtained by counsel. 3 For the foregoing reasons, IT IS ORDERED that the Motion for Attorney Fees (ECF No. 4| 26)is GRANTED. The Court awards $19,000 in attorney’s fees and costs pursuant to

(b), payable to the Law Offices of Lawrence D. Rohlfing, Inc., CPC, to be paid out of 6 | Plaintiffs past-due benefits in accordance with agency policy. 7 IT IS FURTHER ORDERED that Plaintiff's counsel will refund Mr. Montoya the 8 | amount of $3,200 for EAJA funds received. 9 IT IS FURTHER ORDERED that the Clerk of Court shall amend the caption to substitute 10 | Leland Dudek, Acting Commissioner of Social Security, as the defendant in this action. 1] 12 DATED: July 14, 2025. 13 □□ 15 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28

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