(SS) Elba Huante v. Commissioner of Social Security ( 2021 )

1 IN THE UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 ELBA HUANTE, CASE NO. 1:18-cv-1679-GSA 5 Plaintiff, 6 ORDER GRANTING MOTION FOR ATTORNEY v. FEES PURSUANT TO 42 U.S.C. 406(b) 7 (Doc. 22) 8 KILOLO KIJAKAZI, acting Commissioner of Social Security, 9 Defendant. 10 11 Jonathan O. Peña, counsel for Plaintiff Elba Huante, seeks an award of attorney fees pursuant to 12 42 U.S.C. § 406(b). Plaintiff Elba Huante and Defendant were served a copy of the motion (Doc. 22) with 13 instruction to respond, if at all, by July 12, 2021. Neither filed an opposition to the motion. For the 14 reasons that follow the motion will be granted. 15 I. Background 16 Plaintiff entered into a contingent fee agreement with counsel which provides for attorney fees in 17 “an amount equal to twenty-five (25%) of the past due benefits that are awarded to my family and me in 18 the event my case is won.” Doc. 22-2 at 1. The agreement also provide that counsel would seek fees 19 pursuant to the Equal Access to Justice Act (EAJA), fees which would be refunded in the event of an 20 award of past due benefits and payment of the 25% contingency fee. Id. 21 On December 10, 2018 Plaintiff filed a complaint for review of the administrative decision denying 22 her application for benefits. Doc. 1. Plaintiff submitted an opening brief advocating for remand after 23 which the parties stipulated to remand the matter to the agency for further proceedings. Docs. 15, 19. 24 Counsel sought and was awarded EAJA fees of $7,000. Doc. 21. On remand the agency determined that 25 Plaintiff became disabled in 2013 and was entitled to past due benefits through 2021 in an amount of 26 $122,083.00. Doc. 22-1 at 3–4. On June 29, 2021 counsel filed this motion for a 25% contingency fee 27 payment of $30,520.75. 1 II. Legal Standard 2 An attorney may seek an award of fees for representation of a Social Security claimant who is 3 awarded benefits: 4 Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine and allow 5 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 6 judgment . . . 7 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 8 controls fees awarded for representation of Social Security claimants). A contingency fee agreement is 9 unenforceable by the Court if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. at 10 807 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they 11 provide for fees exceeding 25 percent of the past-due benefits.”). 12 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 13 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 14 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 15 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of the 16 representation and the results the representative achieved.” Id. at 808. In addition, the Court should 17 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 18 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 19 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc); Vazquez v. Com'r of Soc. Sec., No. 20 1:17-CV-1646-JLT, 2020 WL 2793059, at *2 (E.D. Cal. May 29, 2020). 21 III. Analysis 22 Here, Plaintiff was represented by experienced counsel and achieved a favorable result. There is 23 no indication counsel engaged in dilatory conduct, excessive delay or substandard performance. Counsel 24 seeks $30,520.75 based on 39.05 hours of work resulting in an effective hourly rate of $781.58. Unlike 25 fee motions governed by the lodestar method, in contingency fee matters pursuant to section 406(b) a 26 comparatively high effective hourly rate is generally warranted to compensate counsel for the risk assumed 27 in representing social security claimants. See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). 1 The $781.58 effective hourly rate sought here is consistent with the rates approved by other courts 2 under section 406(b). See, e.g., Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695, at *2 3 (C.D. Cal. Nov. 13, 2018) (effective hourly rate of $1,553.36); Coles v. Berryhill, No. EDCV 14-1488- 4 KK, 2018 WL 3104502, at *3 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94); Palos v. 5 Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) ($1,546.39 per hour). 6 The $30,520.75 total amount is also consistent with total contingent fee awards granted under 7 section 406(b). See, e.g., Ortega v. Comm'r of Soc. Sec., No. 1:12–cv–01030–AWI–SAB, 2015 WL 8 5021646, at *3 (E.D. Cal. Aug. 21, 2015) ($24,350); Thomas v. Colvin, No. 1:11–cv–01291–SKO, 2015 9 WL 1529331, at *3 (E.D. Cal. Apr. 3, 2015) ($44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS, 10 2013 WL 6712552, at *2 (E.D. Cal. Dec. 19, 2013) ($20,577.57); Jamieson v. Astrue, No. 1:09-cv-00490- 11 LJO-DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) ($34,500). 12 Considering the character of the representation, the result achieved and the fee amounts awarded 13 in similar cases, the request here is reasonable. 14 Accordingly, it is ORDERED as follows: 15 1. Counsel’s motion for attorney fees pursuant to 42 U.S.C. 406(b) (Doc. 22) is granted. 16 2. The Commissioner shall certify a payment of a gross award in the amount of $30,520.75 17 to Jonathan O. Peña. 18 3. Jonathan O. Peña shall refund to Plaintiff EAJA fees previously awarded in the amount of 19 $7,000.00. 20 21 IT IS SO ORDERED. 22 Dated: July 30, 2021 /s/ Gary S. Austin 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27