1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 BERTHA ALICIA D.S., Case No.: 3:19-cv-0935-AGS 11 Plaintiff, ORDER GRANTING MOTION FOR

(b) FEES (ECF 24) 12 v. 13 Kilolo KIJAKAZI, 14 Defendant. 15 16 Plaintiff’s counsel moves for attorney’s fees under

(b). Counsel 17 requests “$4,911.00” with “an order to reimburse [plaintiff] the amount of $2,800.00 for 18 EAJA fees previously paid.” (ECF 24, at 1.) The current request represents about 12% of 19 plaintiff’s past due benefits. Plaintiff was served with the motion and given an opportunity 20 to object. (See ECF 24, at 1.) To date, she hasn’t. 21 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a 22 claimant,” “the court may determine and allow as part of its judgment a reasonable fee for 23 such representation, not in excess of 25 percent of the total of the past-due benefits . . . .” 24

(b). “In contrast to fees awarded under fee-shifting provisions such as 25

, the fee is paid by the claimant out of the past-due benefits awarded; the 26 losing party is not responsible for payment.” Crawford v. Astrue,

(9th 27 Cir. 2009) (en banc). In evaluating an attorney’s fee request, courts “must respect the 28 primacy of lawful attorney-client fee arrangements,” “looking first to the contingent-fee 1 agreement, then testing for reasonableness.” Crawford,

(citation omitted). 2 || Factors the court may consider in evaluating the reasonableness of the attorney fee award 3 “(1) the character of the representation; (2) the results achieved; (3) whether the 4 ||attorney engaged in dilatory conduct; (4) whether the benefits are large in comparison to 5 amount of time counsel spent on the case; and (5) the attorney's record of hours worked 6 ||and counsel's regular hourly billing charge for non-contingent cases.” Avina v. Saul, No. 7 || 18-CV-1728 W (MSB),

, at *1 (S.D. Cal. June 29, 2021). 8 Counsel succeeded in convincing the Commissioner to an agreed remand. (See ECF 9 || 19, at 1.) On remand, plaintiff was granted disability benefits, including $40,847.52 in past- 10 benefits. (ECF 24, at 6.) There is no evidence of dilatory conduct. Counsel’s request 11 12% is less than half of the maximum possible rate. Finally, the effective hourly rate— 12 $307.90 ($4,911.00 + 15.95 hours = $307.90 per hour)—supports the conclusion that the 13 || fee request is reasonable. See Hearn v. Barnhart,

(N.D. Cal. 14 2003) (collecting cases approving fees between ~$200 an hour to ~$700 an hour twenty 15 || years ago). 16 Counsel’s request for fees under

(b) is GRANTED. Counsel is 17 || entitled to $4,911.00 out of plaintiff's past-due benefits. Counsel must reimburse plaintiff 18 || the $2,800.00 EAJA fees already paid. (See ECF 23); Gisbrecht v. Barnhart,

, 19 || 796 (2002) (noting that, when § 406(b) fees are awarded, “the claimant’s attorney must 20 ||refund to the claimant the amount of the smaller [EAJA] fee’’). 21 ||Dated: September 3, 2021 22 — | 3 Hon. ndrew G. Schopler United States Magistrate Judge 24 25 26 27 28