Silva v. Kijakazi ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 X.S., 7 Case No. 21-cv-09725-JCS Plaintiff, 8 v. ORDER GRANTING MOTION FOR 9 AN AWARD OF ATTORNEY FEES KILOLO KIJAKAZI, UNDER 42 U.S.C. § 406(b) 10 Defendant. Re: Dkt. No. 29 11 12 13 I. INTRODUCTION 14 Richard Zieman (“Counsel”), who represented X.S. in this matter under a contingency fee 15 agreement, brings a Motion for Award of Attorney’ Fees Under 42 U.S.C. § 406(b) (“Motion”), 16 seeking an award of $22,225.00 in attorney fees for work before this Court. For the reasons stated 17 below, the Motion is GRANTED. 1 18 II. BACKGROUND 19 X.S. entered into a contingent fee agreement with Counsel providing that Counsel would 20 be awarded 25% of all past-due benefits X.S. received as a result of this action. Zieman Decl., Ex. 21 B. The parties filed cross motions for summary judgment and the Court granted X.S.’s motion, 22 reversing the decision of the Commissioner and remanding for award of benefits. Dkt. no. 22. On 23 January 19, 2023, the Court approved a stipulated fee award of $5,839 under the Equal Access to 24 Justice Act (“EAJA”). Dkt. no. 25 (“EAJA stipulation”). 25 On June 30, 2023, the Social Security Administration issued a Notice of Award, indicating 26 that it awarded $88,900 in past-due benefits to X.S. and that it withheld $7,200 in attorneys’ fees, 27 1 which it paid to Counsel. Zieman Decl. Ex. A. Counsel explains in his declaration that the Social 2 Security Administration appears to have approved the administrative level fee agreement instead 3 of withholding the 25% continency fee amount pending the Court’s determination of whether 4 Counsel may recover fees under Section 406(b). He has contacted the Social Security 5 Administration asking it to correct this error but so far has gotten no response. Zieman Decl. ¶¶ 7- 6 11. Counsel also states that he has discussed this issue with X.S., as well as informing him that he 7 is not seeking fees on the auxiliary benefits that will be received by his dependent, which have not 8 yet been calculated. Id. ¶¶ 12-14. 9 Counsel asks the Court to award 25% of X.S.’s past due benefits ($22,225.00) in attorney 10 fees under 42 U.S.C. § 406(b). He argues that the request is reasonable under Gisbrecht v. 11 Barnhart, 535 U.S. 789, 122 (2002), especially as the award will be offset by the EAJA fees 12 awarded in this case. He has supplied evidence that he spent 28.45 hours on the case. Zieman 13 Decl., Ex. C (timesheet). 14 III. ANALYSIS 15 The scheme established by Congress for attorney fee awards in cases involving social 16 security claims is described by the Supreme Court as follows: 17 Fees for representation of individuals claiming Social Security old- age, survivor, or disability benefits, both at the administrative level 18 and in court, are governed by prescriptions Congress originated in 1965. Social Security Amendments of 1965, 79 Stat. 403, as 19 amended, 42 U.S.C. § 406. . . . The statute deals with the administrative and judicial review stages discretely: § 406(a) governs 20 fees for representation in administrative proceedings; § 406(b) controls fees for representation in court. See also 20 CFR § 21 404.1728(a) (2001). 22 Gisbrecht, 535 U.S. at 793–94. Subsection 406(b) provides, in relevant part, that “[w]henever a 23 court renders a judgment favorable to a claimant under this subchapter who was represented 24 before the court by an attorney, the court may determine and allow as part of its judgment a 25 reasonable fee for such representation, not in excess of 25 percent of the total of the past-due 26 benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of 27 Social Security may . . . certify the amount of such fee for payment to such attorney out of, and 1 Under Gisbrecht, courts should “approach fee determinations [under § 406(b)] by looking 2 first to the contingent-fee agreement, then testing it for reasonableness,” and may reduce the 3 recovery “based on the character of the representation and the results the representative achieved.” 4 Gisbrecht, 535 U.S. at 808. The Ninth Circuit has applied Gisbrecht to mean that “court[s] may 5 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 6 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (citing 7 Gisbrecht 535 U.S. at 808). In this analysis, courts “generally have been deferential to the terms 8 of the contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates 9 may exceed those for non-contingency fee arrangements,” noting that “basing a reasonableness 10 determination on a simple hourly rate basis is inappropriate when an attorney is working pursuant 11 to a reasonable contingency contract for which there runs a substantial risk of loss.” Hearn v. 12 Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). 13 In addition to the fees permitted under § 406(b), the Equal Access to Justice Act (“EAJA”), 14 enacted in 1980, allows a party who prevails against the United States in court, including a 15 successful Social Security benefits claimant, to receive an award of fees payable by the United 16 States if the Government’s position in the litigation was not “substantially justified.” Gisbrecht, 17 535 U.S. at 796 (citing 28 U.S.C. § 2412(d)(1)(A)). In contrast to fees awarded under § 406(b), 18 EAJA fees are based on the “time expended” and the attorney’s “[hourly] rate.” 28 U.S.C. § 19 2412(d)(1)(B). In Gisbrecht, the Supreme Court explained that “Congress harmonized fees 20 payable by the Government under EAJA with fees payable under § 406(b) out of the claimant’s 21 past-due Social Security benefits in this manner: Fee awards may be made under both 22 prescriptions, but the claimant’s attorney must refun[d] to the claimant the amount of the smaller 23 fee.’” 535 U.S. at 796 (citing Act of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 186 (1985)). 24 Accordingly, “an EAJA award offsets an award under [42 U.S.C. § 406(b)],” increasing “up to the 25 point the claimant receives 100 percent of the past-due benefits.” Gisbrecht, 535 U.S. at 796. 26 Here, Counsel seeks $22,225.00 in attorney fees, which is 25% of the past due benefits 27 awarded to X.S. Although the contingent fee agreement between Counsel and X.S. allows 1 X.S.’s dependents, Counsel does not seek to recover fees on auxiliary benefits. Zieman Decl. { 13. 2 || The Court finds Counsel’s request to be reasonable under Gisbrecht. First, Counsel has presented 3 a valid contingent fee agreement. Second, he has supplied timesheets documenting hours worked, 4 which the Court finds to be reasonable. Third, there is no evidence that Counsel’s work was 5 substandard or that the fee award is disproportionate to the amount of work on the case and the 6 || effective hourly rate of $781.20 is well within the range of what courts have approved under 7 Section 406(b). See, e.g., Crawford v. Astrue, 586 F.3d 1142 1153 (9th Cir. 2009) (approving de 8 facto hourly rates of $519, $875, and $902 in 2009); Reddick y. Berryhill, 16-CV-29-BTM-BLM, 9 2019 WL 1112080, at *2-3 (S.D. Cal. Mar. 11, 2019) (collecting cases and approving de facto 10 hourly rate of $1,080.26 for 21.6 hours of work). Moreover, Counsel obtained an excellent result 11 for his client and took on the risk of contingent representation. 12 Accordingly, the Court finds that Counsel is entitled to the requested amount of $22,225 in 13 attorney fees under 42 U.S. § 406(b). 14 || Iv. CONCLUSION 15 The Motion is GRANTED. Counsel is awarded $22,225 in attorneys, which shall be offset a 16 || by the amounts he has already received from the Social Security Administration and as a result of 3 17 the EAJA fee award. 18 IT IS SO ORDERED. 19 Dated: September 7, 2023 20 5 ZL c EE J PH C. SPERO 21 nited States Magistrate Judge 22 23 24 25 26 27 28