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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EUREKA DIVISION

VICTORIA LYNN NUNES,

Plaintiff,

v.

NANCY A. BERRYHILL,

Defendant.

Case No. 17-cv-00706-RMI 

ORDER GRANTING MOTION FOR 

ATTORNEY’S FEES

Re: Dkt. No. 37

On March 20, 2018, the undersigned entered an order granting Plaintiff’s Motion for 

Summary Judgment, reversing the ALJ’s determination, and remanding this matter for calculation 

and award of appropriate benefits. See (dkt. 31). On July 18, 2018, the undersigned granted the 

parties’ Stipulation for Award and Payment of Equal Access to Justice Act (“EAJA”) Fees, Costs, 

and Expenses in the amount of $8,000.00. See (dkt. 36). On October 5, 2018, the Social Security 

Administration awarded Plaintiff past-due benefits in the amount of $59,342.64. See (dkt. 37-4).

Plaintiff’s attorney now seeks an award of attorney’s fees pursuant to Social Security Act 

Section 206(b)(1) and 28 U.S.C. § 406(b)(1). For the reasons explained below, the court will 

grant the motion. 

DISCUSSION

Unlike the EAJA, 42 U.S.C § 406(b) does not authorize the prevailing party to recover fees 

from the losing party. Rather, Section 406 authorizes fees payable from the successful party’s 

recovery. Specifically, 42 U.S.C. § 406(b)(1)(A), provides that “[w]henever 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 
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United States District Court

Northern District of California

in excess of 25% of the total of the past-due benefits to which the claimant is entitled by reason of 

such judgment.” Courts addressing Section 406(b) fee determinations must do so “by looking first 

to the contingent-fee agreement, then testing it for reasonableness.” Crawford v. Astrue, 586 F.3d 

1142, 1149 (9th Cir. 2009), quoting Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). In 

considering whether the contingent-fee agreement is reasonable, courts may consider factors 

including “the character of the representation and the result the representation achieved.” 

Gisbrecht, 535 U.S. at 808. 

In this case, Plaintiff and her attorney contracted for a contingent fee in the amount equal 

to twenty-five percent of the past due benefits awarded to Plaintiff and her family if she won her 

case. See (dkt. 37-3). This amount is allowable under Section 406(b)(1)(A). The court finds 

these fees eminently reasonable in light of the excellent result achieved by Plaintiff’s attorney, i.e., 

the granting of Plaintiff’s motion for summary judgment, reversal of the ALJ’s decision, and 

remand for calculation and award of benefits. Defendant does not dispute the reasonableness of 

the fees sought by Plaintiff’s counsel, noting that the Commissioner is not a party to the 

contingent-fee agreement between Plaintiff and her attorney. See (dkt. 38). The court finds no 

basis to reduce the requested fees.

The parties agree that the court must account for the attorney’s fees paid by the 

Commissioner on her own behalf pursuant to the EAJA. Accordingly, the court HEREBY 

GRANTS Plaintiff’s Motion for Attorney’s Fees Pursuant to 42 U.S.C. 406(b)(1) in the amount of 

$14,835.66 and directs Plaintiff’s counsel to refund $8000.00 to Plaintiff.

IT IS SO ORDERED.

Dated: February 5, 2019

ROBERT M. ILLMAN

United States Magistrate Judge