Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 RICHARD L., Case No.: 23-cv-640-DDL 9 Plaintiff, 10 v. ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S 11 FRANK BISIGNANO, Acting EXPARTE PETITION FOR 12 Commissioner of Social Security, ATTORNEY’S FEES PURSUANT TO SECTION 206(b) OF THE 13 Defendant. SOCIAL SECURITY ACT 14 [Dkt. No. 34] 15 16 17 Currently before the Court is Plaintiff’s March 23, 2026, Ex-Parte Petition for 18 Attorney Fees Pursuant to 42 U.S.C. § 406(b) [Dkt. No. 34 (“Mot.”)] and 19 Defendant’s March 25, 2026 response [Dkt. No. 35 (“Response”)]. 20 Parties’ Positions 21 Plaintiff seeks an order from the Court awarding attorney fees pursuant to 22 Section 206(b) of the Social Security Act and 42 U.S.C. § 406(b) in the amount of 23 $39,923.50 with a credit to Plaintiff for the EAJA fees previously paid in the amount 24 of $12,179.44. Mot. at 2, 3. Plaintiff argues that twenty-five percent (25%) of his 25 past-due benefits ($118,278.00) is $39,923.50 and that since his counsel did not 26 receive any fee award pursuant to section 406(a) of the Social Security Act, “the 27 Court should authorize the full amount of the 25 percent past-due benefits, in the 28 amount of $39,923.50.” Id. at 3. 1 Defendant states that it “neither supports nor opposes Counsel’s request for 2 attorney’s fees in the amount of $39,923.50, under 42 U.S.C. § 406(b).” Response 3 at 2. Defendant notes that “[i]t is for the Court to decide if the request for attorney’s 4 fees under 42 U.S.C. § 406(b) is reasonable under the law.” Id. Defendant 5 requests that the Court order that “Counsel reimburse Plaintiff fees they previously 6 received under the EAJA, 28 U.S.C. § 2412.” Id. at 3. 7 Analysis 8 Pursuant to Section 406(b), “[w]henever a court renders a judgment 9 favorable to a [social security] claimant, ... the court may determine and allow as 10 part of its judgment a reasonable fee for such representation, not in excess of 25 11 percent of the total of the past-due benefits.” 42 U.S.C. § 406(b)(1)(A). “Within 12 the 25 percent boundary, ... the attorney for the successful claimant must show 13 that the fee sought is reasonable for the services rendered.” Gisbrecht v. Barnhart, 14 535 U.S. 789, 807 (2002).1 When contemplating a fee motion under Section 15 406(b), the Court must first look to the contingency fee agreement and then test 16 for reasonableness. See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). 17 To determine reasonableness, the Court may consider “(1) the character of the 18 representation; (2) the results achieved; (3) whether the attorney engaged in 19 dilatory conduct; (4) whether the benefits are large in comparison to the amount of 20 time counsel spent on the case; and (5) the attorney's record of hours worked and 21 counsel's regular hourly billing charge for non-contingent cases.” Barry H. v. 22 Kijakazi, 2023 WL 5985501, at *1 (S.D. Cal., Sept. 13, 2023). The Court should 23 also consider whether inferior representation justifies an award of less than 25% 24 such as “any delay in the proceedings attributable to the attorney requesting the 25 26 27 1 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations, 28 and footnotes are omitted from citations. 1 ||fee; whether the benefits of the representation are out of proportion to time spent 2 ||on the case; and the risk counsel assumed by accepting the case.” Bartle v. 3 || Kijakazi, 2023 WL 5811845, at *1-2 (S.D. Cal., Sept. 7, 2023). 4 Here, Plaintiff has not provided the Court with a declaration from his counsel, 5 ||a copy of the relevant fee or retainer agreement, Plaintiff's counsel’s billing rate or 6 ||records, or any additional information the Court can use to evaluate the 7 |{reasonableness of Plaintiff's motion. The motion also fails to address whether 8 || Plaintiff's counsel provided Plaintiff with notice of the motion and an explanation of 9 || Plaintiff's right to file a response or objection to the motion. See Bridget M. v. 10 || Kijakazi, No. EDCV 19-1497-KK, 2022 WL 18142562, at *1 (C.D. Cal., Sept. 12, 11 |}2022)(“Where counsel files a motion for fees in an action for social security 12 || benefits, counsel must provide a statement showing she sent a copy of the motion 13 ||to the claimant.”); see also 20 C.F.R. § 404.1725(a)(7) (“In order for your 14 ||representative to obtain approval of a fee for services he or she performed in 15 ||dealings with us, he or she shall file a written request with one of our offices. .. . 16 || The request must contain -.... A statement showing that the representative sent 17 ||a copy of the request for approval of a fee to you.”) Accordingly, Plaintiff's motion 18 DENIED without prejudice. Plaintiff may re-file the motion with the additional 19 |linformation discussed. See Crawford, 586 F.3d at 1151 (“[als evidence of the 20 ||reasonableness of the resulting fee, the court may require counsel to submit a 21 ||record of hours spent and a statement of normal hourly billing charges.”). Any 22 ||Subsequent motion must be filed as a noticed motion and not an ex parte petition. 23 IS SO ORDERED. 24 ||Dated: April 2, 2026 nee 25 Tb Lh, 26 Hon. David D. Leshner 27 United States Magistrate Judge 28