(SS) Kane v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERICKA L. KANE, No. 2:19-cv-01584 AC 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for benefits under the Social Security Act (“the Act”). 20 On April 22, 2020, pursuant to the parties’ stipulation, the court remanded the case to the 21 Commissioner for further proceedings. ECF No. 19. 22 Now pending before the court is plaintiff’s motion for an award of attorney’s fees 23 pursuant to 42 U.S.C. § 406(b). ECF No. 23. Defendant responded to the fee request but did not 24 oppose or support the motion. ECF No. 25. For the reasons set forth below, the motion will be 25 granted. 26 I. REASONABLENESS OF FEE REQUEST 27 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 28 agreement. ECF No. 23-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 1 fees in the net amount of $14,558.00 (a gross amount of $51,248.00) which represents less than 2 25% of the $58,234.00 awarded in retroactive disability benefits received by plaintiff on remand, 3 for 17.05 hours of attorney time expended on this matter. ECF No. 23 at 8. 4 Attorneys are entitled to fees for cases in which they have successfully represented social 5 security claimants: 6 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 7 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 8 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 9 may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. 10 11 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 12 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 13 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 14 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 15 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 16 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 17 Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 18 535 U.S. at 805). 19 The 25% statutory maximum fee is not an automatic entitlement, and the court must 20 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 21 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 22 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 23 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 24 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 25 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 26 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 27 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 28 //// 1 In determining whether the requested fee is reasonable, the court considers “‘the character 2 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 3 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 4 the court considers whether the attorney provided “substandard representation or delayed the 5 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 6 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 7 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 8 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 9 labor required”). Below, the court will consider these factors in assessing whether the fee 10 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 11 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 12 plaintiff. There is no indication that a reduction of fees is warranted due to any substandard 13 performance by counsel. There is also no evidence that plaintiff’s counsel engaged in any 14 dilatory conduct resulting in excessive delay. The court finds that the $14,558.00 fee, which does 15 not exceed 25% of the amount paid in past-due benefits paid to plaintiff, is not excessive in 16 relation to the benefits awarded. In making this determination, the court recognizes the 17 contingent fee nature of this case and counsel’s assumption of the risk of going uncompensated in 18 agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys 19 assumed significant risk in accepting these cases, including the risk that no benefits would be 20 awarded or that there would be a long court or administrative delay in resolving the cases”). 21 Finally, counsel has submitted a detailed billing statement in support of the requested fee. ECF 22 No. 23-5. 23 Accordingly, for the reasons stated above, the court concludes that the fees sought by 24 counsel pursuant to § 406(b) are reasonable. 25 II. OFFSET FOR EAJA FEES 26 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 27 under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 28 Here, plaintiff’s attorney was previously awarded $3,150.00 in EAJA fees. See ECF No. 22. 1 | However, plaintiff represents this amount was subject to the Treasury Offset Program in the 2 || amounts of $1,972 and $1,178 to pay Kane’s federally recoverable debt. ECF No. 23 at 1. Thus, 3 || no EAJA offset applies here. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 23), is 6 | GRANTED; 7 2. Counsel for plaintiff is awarded $14,558.00 in attorney’s fees under § 406(b); the 8 || Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 9 || for the payment of such fees. 10 | DATED: March 30, 2023 ~ Chthwen— Clare ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28