1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 C.D., Case No. 18-cv-03802-VKD

9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 v. COUNSEL’S MOTION FOR FEES

11 KILOLO KIJAKAZI, Re: Dkt. No. 29 Defendant. 12

13 14 I. BACKGROUND 15 In this Social Security appeal,1 the Court granted in part plaintiff C.D.’s motion for 16 summary judgment, remanded the case for further agency proceedings, and entered judgment 17 accordingly. Dkt. Nos. 25, 26. The Court subsequently approved the parties’ stipulation for an 18 award of attorney’s fees in the amount of $7,700 to C.D.’s counsel, Katherine Siegfried, pursuant 19 to the Equal Access to Justice Act (“EAJA”),

. Dkt. No. 28. On remand, the 20 Social Security Administration (“SSA”) concluded that C.D. is entitled to receive retroactive 21 benefits in the amount of $74,529. Dkt. No. 29-4. 22 The record indicates that prior to the filing of this appeal, C.D. and Ms. Seigfried entered 23 into a contingency fee agreement, which provides for a fee of 25% of C.D.’s past-due benefits 24 resulting from a favorable disability claim. Dkt. No. 29-3. The SSA’s August 2021 Notice of 25 Award informed C.D. that 25% of her past-due benefits, or $18,632.25, was being withheld in the 26 event attorney’s fees were payable to Ms. Siegfried under the Social Security Act. Dkt. No. 29-4. 27 1 Ms. Siegfried now seeks $12,700, or approximately 17% of those past-due benefits 2 pursuant to

(b) and her fee agreement with C.D. Ms. Siegfried acknowledges that 3 she must reimburse C.D. for the previous $7,700 EAJA fee award, leaving a net fee award of 4 $5,000. 5 The record indicates that Ms. Siegfried mailed and emailed copies of the present motion to 6 C.D. Dkt. No. 29-1, ¶ 9. Ms. Siegfried states that C.D. has not indicated that she has any 7 objection.

The Commissioner does not oppose the motion, but notes that she also does not 8 take a position on the reasonableness of the fees requested. Dkt. No. 30. The record indicates that 9 the Commissioner mailed a copy of her response to C.D. on September 3, 2021. Dkt. No. 31. The 10 Court has not received any opposition or response from C.D. regarding this matter, and the time 11 for submitting such papers has passed. See Civ. L.R. 7-3. The motion is deemed suitable for 12 determination without oral argument. Civ. L.R. 7-1(b). Upon consideration of the moving and 13 responding papers, the Court grants the motion for fees. 14 II. DISCUSSION 15 When a court renders judgment favorable to a claimant represented by an attorney, “the 16 court may determine and allow as part of its judgment a reasonable fee for such representation, not 17 in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by 18 reason of such judgment[.]”

(b)(1)(A). A court may award such fees even if the 19 court’s judgment did not immediately result in an award of past-due benefits. Butler v. Colvin, 20 No. 3:14-cv-02050-LB,

, at *1 (N.D. Cal. Feb. 2, 2017). Although a district 21 court may award fees under both the EAJA and § 406(b), “‘the claimant’s attorney must refund to 22 the claimant the amount of the smaller fee.’” Crawford v. Astrue,

, 1144 n.3 (9th 23 Cir. 2009) (quoting Gisbrecht v. Barnhart,

(2002)). 24 “Attorneys specializing in social security work ‘routinely enter into contingent-fee 25 agreements specifying that the fee will be 25% of any past-due benefits recovered, thus providing 26 the attorney the statutory maximum of fees if the representation is successful.’” Mercado v. Saul, 27 No. 16-cv-04200-BLF,

, at *1 (N.D. Cal. May 15, 2020) (quoting Crawford, 1 means by which fees are set for successfully representing Social Security benefits claimants in 2 court.” Gisbrecht,

. “Rather, § 406(b) calls for court review of such arrangements 3 as an independent check, to assure that they yield reasonable results in particular cases.” Id. “The 4 statute does not specify how courts should determine whether a requested fee is reasonable” and 5 “provides only that the fee must not exceed 25% of the past-due benefits awarded.” Crawford, 6

; see also Gisbrecht,

(“Congress has provided one boundary line: 7 Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the 8 past-due benefits.”). The attorney seeking fees must show that the fees sought are reasonable for 9 the services rendered. Gisbrecht,

. 10 In determining a reasonable fee award under § 406(b), courts “must respect ‘the primacy of 11 lawful attorney-client fee agreements,’ . . . ‘looking first to the contingent fee agreement, then 12 testing it for reasonableness.’” Crawford,

(quoting Gisbrecht,

, 13 808). In this context, reasonableness does not depend on lodestar calculations, but upon “the 14 character of the representation and the results the representative achieved.” Gisbrecht,

808. Fees resulting from a contingent fee agreement are unreasonable and subject to reduction by 16 the court “if the attorney provided substandard representation or engaged in dilatory conduct in 17 order to increase the accrued amount of past-due benefits, or if the ‘benefits are large in 18 comparison to the amount of time counsel spent on the case.’” Crawford,

19 (quoting Gisbrecht,

). Although the Supreme Court has “flatly rejected [a] lodestar 20 approach,”

a court may require, “not as a basis for satellite litigation, but as an aid to the 21 court’s assessment of the reasonableness of the fee yielded by the fee agreement,” submission of 22 the requesting attorney’s records of the hours worked and normal hourly billing rate for non- 23 contingent fee cases. Gisbrecht,

. 24 Ms. Siegfried has demonstrated that the requested fees are reasonable for the services 25 rendered. Her contingency fee agreement with C.D. provides for fees within the 25% limit 26 imposed by § 406(b). Dkt. No. 29-3. Moreover, Ms. Siegfried seeks fees that are less than the 27 25% maximum allowed under the law. She successfully pursued this appeal and obtained a 1 substandard or that she engaged in dilatory conduct in order to increase the amount of fees to be 2 awarded. Although not dispositive, Ms. Siegfried’s time records indicate that she spent a total of 3 43.2 hours on this matter, yielding a de facto hourly rate of $293.98, which is higher than the 4 || EAJA rate of $125/hour, but less than the $500/hour Ms. Siegfried says she charges in non- 5 || contingent fee matters. Dkt. No. 29-1 411; Dkt. No. 29-2. Having reviewed Ms. Siegfried’s time 6 || records, the Court concludes that C.D.’s past-due benefits are not disproportionate to the time Ms. 7 Siegfried spent on this matter and do not result in an impermissible windfall. See generally Hearn 8 v. Barnhart,

(N.D. Cal. 2003) (noting that in Social Security cases, 9 courts have awarded fees based on de facto hourly rates ranging from $187.55 to $694.44); see 10 also, e.g., Williams v. Berryhill, No. 18-cv-07126-LB,

(N.D. Cal. July 19, 11 2021) (awarding $16,916 in fees following an award of $67,664 in retroactive benefits). The 12 || Court also observes that the SSA award entails more than just the past-due benefits on which the 5 13 requested fees are based and include hospital and medical insurance. See Dkt. No. 29-4. 14 || Moreover, Ms. Siegfried assumed a considerable risk of not recovering fees when she accepted 3 15 || representation of this matter in 2018, at a time when the SSA had denied C.D.’s application for a 16 || benefits and counsel could not have known how the present appeal would be resolved. 3 17 Accordingly, Ms. Siegfried’s motion for fees is granted. 18 || 1 CONCLUSION 19 Based on the foregoing, the motion for fees pursuant to

(b) is granted. The 20 || Court awards $12,700 in fees to Ms. Siegfried. Ms. Siegfried shall refund to C.D. the $7,700 in 21 EAJA fees previously awarded. 22 IT IS SO ORDERED. 23 Dated: October 26, 2021 24

VIRGINIA K. DEMARCH 26 United States Magistrate Judge 27 28