United States District Court, D. Nevada
WILLIAM M. POREMBA, Plaintiff(s),
CAROLYN W. COLVIN, Defendant(s).
before the court is attorney Marc V. Kalagian and the Law
Offices of Rohlfing & Kalagian, LLP's (collectively,
“counsel”) motion for attorney's fees. (ECF
No. 37). Defendant Carolyn Colvin, as acting commissioner of
the Social Security Administration, filed a non-opposition
response. (ECF No. 38). Plaintiff William Poremba has not
filed a response, and the time to do so has passed.
23, 2011, plaintiff signed a social security representation
agreement with counsel. (ECF No. 37-1). The agreement created
a payment structure whereby plaintiff would pay counsel 25%
of plaintiff's backpay award, up to a capped $6, 000
limit, if plaintiff received the award at or before a first
hearing decision from an administrative law judge
(“ALJ”). Id. Plaintiff further agreed to
pay counsel 25% of the past-due benefits, without limitation,
resulting from any reversal of an unfavorable ALJ decision.
applied for and was denied social security disability
insurance benefits. (ECF No. 1). On October 18, 2013,
plaintiff filed a complaint against Michael Astrue, the
former commissioner of the Social Security Administration.
13, 2014, Magistrate Judge Koppe ordered the case be remanded
to the Social Security Administration. (ECF No. 32). On
remand, the administrative law judge found plaintiff disabled
since April 14, 2009. (ECF No. 37-2 at 10). On March 7, 2016,
the commissioner sent plaintiff a letter, stating that the
agency withheld twenty-five percent of plaintiff's
past-due benefits to pay attorney's fees, which was $22,
622.25 in this case. (ECF No. 37-3 at 2-3).
December 15, 2016, counsel filed the instant motion, seeking
$22, 622.25 of plaintiff's past-due benefits. (ECF No.
37). Included in counsel's motion is proof of service as
to plaintiff and defendant. (ECF No. 37 at 11).
have jurisdiction to determine the reasonableness of an
attorney's requested fees. 42 U.S.C. § 406(b)(1)(A)
(“Whenever a court renders a judgment favorable to a
claimant . . . who was represented before the court by an
attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such
judgment.”). “§ 406(b) calls for court
review of [contingent-fee] arrangements as an independent
check, to assure that they yield reasonable results in
particular cases.” Gisbrecht v. Barnhart, 535
U.S. 789, 807 (2002).
reviewing fee requests under § 406(b), a district court
must first look to the agreement and determine
reasonableness. Id. at 807. Courts consider
“the character of the representation and the results
the representative achieved.” Id. at 808. A
district court should not merely make a lodestar calculation,
but rather should consider the reasonableness of the
attorney's request, “if not ‘in excess of 25
percent.'” Id. at 799. Additionally, a
court may properly reduce the fee for benefits that are not
in proportion to the time spent on the case. Crawford v.
Astrue, 586 F.3d 1142, 1151 (9th Cir. 2013). The moving
attorney bears the burden of proving that the fees sought are
reasonable. Gisbrecht, 535 U.S. at 807.
harmonized fees payable by the Government under [Equal Access
to Justice Act] with fees payable under § 406(b) out of
the claimant's past-due Social Security benefits in this
manner: Fee awards may be made under both prescriptions, but
the claimant's attorney must ‘refun[d] to the
claimant the amount of the smaller fee.'”
Id. (citing Act of Aug. 5, 1985, Pub.L. 99-80,
§ 3, 99 Stat. 186).
court will approve counsel's requested attorney's
fees, as the agreement and fees sought pursuant to the
agreement are reasonable. The agreement provided a tiered
system whereby counsel would receive a smaller, capped award
if plaintiff obtained a favorable ruling at or before an
initial appearance in front of an ALJ. (ECF No. 37-1). Here,
the fee structure whereby counsel would receive 25% of
plaintiff's backpay award if counsel obtained a reversal
of an unfavorable ALJ ruling was a reasonable agreement
entered into by the parties.
contingency award of 25% is reasonable in this case. In this
case, 25% of plaintiff's backpay award comes to $22,
622.25. (ECF No. 37-3 at 2-3). Counsel's statement of
work lists that it expended 22.1 hours preparing and
litigating the case, with 2.3 of these hours marked as
paralegal work. Counsel thus requests $1, 023.62 per hour
(rounded) for time spent on the case.
representation of plaintiff in this case merits the requested
award. Importantly, defendant Colvin, on behalf of the Social
Security Administration, filed a non-opposition response to
counsel's motion, and plaintiff has not filed a response.
And the attorneys in this case assumed a financial risk in
continuing to litigate plaintiff's case after an
initially unfavorable ruling. If counsel were unsuccessful in
obtaining a reversal of the prior ALJ decision, counsel would
not have received payment at all for its time spent on the
case. Cf. Jameison v. Astrue, No.
1:09-cv-00490-LJO-DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb.