Unreported / Non-Citable
Background
Christina V. received a fully favorable administrative decision on February 25, 2026, with $196,902 in past-due benefits. Her counsel filed an amended petition under 42 U.S.C. § 406(b) seeking $10,000 for district court representation. The Commissioner neither supported nor opposed the request but noted the attached fee agreements did not appear to authorize § 406(b) fees. The court ordered supplemental briefing on counsel's authority to collect under § 406(b) and the agreement's $9,200 cap, but counsel failed to respond by the extended deadline of October 30, 2026.
The operative contingency fee agreement, signed February 27, 2025, provides for payment of "the lesser of 25% of the amount of past due benefits awarded to me and any auxiliary beneficiaries, or $9,200.00" and references 42 U.S.C. § 406(a)(2). It does not mention § 406(b). A prior 2020 agreement is similarly silent on § 406(b). The court focused on the 2025 agreement as the operative contract. The court also noted that 25 percent of the past-due benefits would be $49,225.00, far exceeding the requested $10,000, but the contractual cap and lack of § 406(b) authorization controlled the analysis.
The Court’s Holding
The court held that the fee agreement does not authorize a § 406(b) award because it only references § 406(a)(2), which governs administrative-level fees payable by the Commissioner, not court-awarded fees under § 406(b). Citing MacDonald v. Weinberger, 512 F.2d 144 (9th Cir. 1975), the court noted it lacks authority to award fees for representation before the agency. While express contractual authorization is not an absolute prerequisite for a § 406(b) award, counsel bears the burden of demonstrating the fee's reasonableness. Because counsel failed to submit the ordered supplemental briefing explaining the legal and factual basis for an award notwithstanding the agreement's terms, the petition was denied without prejudice.
The denial is without prejudice to re-filing by December 1, 2026, with the additional information requested in the court's October 7, 2026 order. The court emphasized that it afforded counsel an opportunity to address the omission and explain the legal and factual basis for a reasonable award, but counsel did not submit the requested supplemental briefing.
Key Takeaways
- A contingency fee agreement that references only 42 U.S.C. § 406(a)(2) does not authorize attorney fees under § 406(b) for court representation.
- Counsel bears the burden of proving the reasonableness of a requested § 406(b) fee, even absent express contractual authorization.
- Failure to respond to a court order for supplemental briefing on fee authority warrants denial without prejudice.
- The court may deny a § 406(b) petition without prejudice and set a deadline for re-filing with proper support.
- The Commissioner's neutral position does not relieve counsel of the obligation to justify the fee request.
Why It Matters
This order reinforces the requirement that counsel in Social Security cases must demonstrate a proper basis for § 406(b) fees, particularly when the fee agreement is limited to § 406(a). It illustrates the court's gatekeeping role under Gisbrecht v. Barnhart and the practical consequence of failing to comply with court orders for supplemental briefing. The ruling is a routine application of Ninth Circuit precedent but serves as a reminder that § 406(b) fees are not automatic and require both contractual or legal authority and a reasonableness showing.
The decision also highlights the distinction between § 406(a) and § 406(b) fee awards: the former is administered by the agency for representation before it, while the latter requires court approval for representation in federal court. By denying without prejudice and setting a December 1, 2026 deadline, the court preserved counsel's ability to cure the deficiency with proper documentation.