Opinion
3:19-cv-0935-AGS
09-03-2021
BERTHA ALICIA D.S., Plaintiff, v. Kilolo KIJAKAZI, Defendant.
ORDER GRANTING MOTION FOR 42 U.S.C. § 406(b) FEES (ECF 24)
HON. ANDREW G. SCHOPLER UNITED STATES MAGISTRATE JUDGE
Plaintiff's counsel moves for attorney's fees under 42 U.S.C. § 406(b). Counsel requests “$4, 911.00” with “an order to reimburse [plaintiff] the amount of $2, 800.00 for EAJA fees previously paid.” (ECF 24, at 1.) The current request represents about 12% of plaintiff's past due benefits. Plaintiff was served with the motion and given an opportunity to object. (See ECF 24, at 1.) To date, she hasn't.
Section 406(b) provides that “[w]henever a court renders a judgment favorable to a claimant, ” “the court may determine and allow 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 . . . .” 42 U.S.C. § 406(b). “In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc). In evaluating an attorney's fee request, courts “must respect the primacy of lawful attorney-client fee arrangements, ” “looking first to the contingent-fee agreement, then testing for reasonableness.” Crawford, 586 F.3d at 1148 (citation omitted). Factors the court may consider in evaluating the reasonableness of the attorney fee award are: “(1) the character of the representation; (2) the results achieved; (3) whether the attorney engaged in dilatory conduct; (4) whether the benefits are large in comparison to the amount of time counsel spent on the case; and (5) the attorney's record of hours worked and counsel's regular hourly billing charge for non-contingent cases.” Avina v. Saul, No. 18-CV-1728 W (MSB), 2021 WL 2662309, at *1 (S.D. Cal. June 29, 2021).
Counsel succeeded in convincing the Commissioner to an agreed remand. (See ECF 19, at 1.) On remand, plaintiff was granted disability benefits, including $40, 847.52 in past-due benefits. (ECF 24, at 6.) There is no evidence of dilatory conduct. Counsel's request of 12% is less than half of the maximum possible rate. Finally, the effective hourly rate- $307.90 ($4, 911.00 ÷ 15.95 hours = $307.90 per hour)-supports the conclusion that the fee request is reasonable. See Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003) (collecting cases approving fees between ~$200 an hour to ~$700 an hour twenty years ago).
Counsel's request for fees under 42 U.S.C. § 406(b) is GRANTED. Counsel is entitled to $4, 911.00 out of plaintiff s past-due benefits. Counsel must reimburse plaintiff the $2, 800.00 EAJA fees already paid. (See ECF 23); Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (noting that, when § 406(b) fees are awarded, “the claimant's attorney must refund to the claimant the amount of the smaller [EAJA] fee”).