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4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 JOHN ALLEN COOK, Case No. 1:20-cv-01789-EPG 9 Plaintiff, ORDER GRANTING, IN PART, MOTION 10 FOR ATTORNEY’S FEES PURSUANT 11 v. TO

(b) COMMISSIONER OF SOCIAL SECURITY, 12 (ECF No. 29) Defendant. 13 14 On June 22, 2023, Attorney Jonathan Peña, counsel for Plaintiff John Allen Cook, filed a 15 motion for an award of attorney’s fees under

(b). (ECF No. 29). Plaintiff and the 16 Commissioner of Social Security were each served with a copy of the motion. (Id. at 9, ECF No. 17 31). Plaintiff has not filed any response to the motion. On July 25, 2023, the Commissioner filed 18 a response providing analysis regarding the fee request but taking no position on its 19 reasonableness. (ECF No. 32). 20 For the reasons set forth below, the motion for an award of attorney’s fees is GRANTED, 21 in part, in the amount of $30,940, with counsel reimbursing Plaintiff for $4,795.91 in fees 22 received pursuant to the Equal Access to Justice Act (EAJA),

(d). (See ECF No. 23 28). 24 I. BACKGROUND 25 Plaintiff filed the complaint in this case on December 18, 2020. (ECF No. 1). The parties 26 consented to this case proceeding before the undersigned. (ECF No. 11). After Plaintiff filed a 27 brief, the parties filed a stipulation for voluntary remand for further proceedings. (ECF Nos. 19, 28 24). On April 8, 2022, the Court remanded the case pursuant to the parties’ stipulation. (ECF No. 1 25). And on July 7, 2022, pursuant to the parties’ stipulation, the Court entered an order awarding 2 Plaintiff $4,795.91 in EAJA fees. (ECF Nos. 27, 28). 3 On remand, Plaintiff was found disabled, and the Commissioner calculated Plaintiff’s 4 past-due benefits at $162,281.92 and 25%, i.e., $40,570.48, was withheld to pay Plaintiff’s representative. (ECF No. 29, p. 3, ECF No. 29-1, p. 4). This matter is now before the Court on 5 counsel’s motion, seeking an award of $40,570.48. 6 II. DISCUSSION 7 Under the Social Security Act, attorneys may seek a reasonable fee for cases in which 8 they have successfully represented social security claimants. Section 406(b) provides: 9 Whenever a court renders a judgment favorable to a claimant under this subchapter 10 who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess 11 of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . 12 certify the amount of such fee for payment to such attorney out of, and not in 13 addition to, the amount of such past-due benefits . . . . 14

(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting provisions such as

, the 15 [§ 406(b)] fee is paid by the claimant out of the past-due benefits awarded; the losing party is not 16 responsible for payment.” Crawford v. Astrue,

(9th Cir. 2009) (en banc) 17 (citing Gisbrecht v. Barnhart,

(2002)). Even though the § 406(b) fee award is 18 not paid by the Government, the Commissioner “plays a part in the fee determination resembling 19 that of a trustee for the claimant[].” Gisbrecht,

n. 6. The goal of awarding fees 20 under § 406(b) was to prohibit “exorbitant fees” from being collected by attorneys but also to 21 provide sufficient fee awards “to encourage adequate representation of claimants.” Crawford, 586 22 F.3d at 1149 (internal citations omitted). 23 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 24 that the requested fee is reasonable. Gisbrecht,

(holding that § 406(b) does not 25 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 26 to review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary 27 . . . the attorney for the successful claimant must show that the fee sought is reasonable for the 28 1 services rendered.” Id. at 807; see also Crawford,

(noting that § 406(b) “does 2 not specify how courts should determine whether a requested fee is reasonable” but “provides 3 only that the fee must not exceed 25% of the past-due benefits awarded”). 4 Generally, “a district court charged with determining a reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . 5 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 6 F.3d at 1148 (quoting Gisbrecht,

). The United States Supreme Court has 7 identified several factors that may be considered in determining whether a fee award under a 8 contingent-fee agreement is unreasonable and therefore subject to reduction: (1) the character of 9 the representation; (2) the results achieved by the representative; (3) whether the attorney engaged 10 in dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 11 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 12 attorney’s record of hours worked.

(citing Gisbrecht,

). 13 Here, the fee agreement in this case provides as follows: 14 I agree to pay my attorney 25 % of Past Due Benefits/Retroactive benefits 15 AWARDED (pre-offset) to me and my family (this includes any auxiliary beneficiaries) resulting from my disability claim at the time benefits are awarded. 16 . . . . 17 However, my attorney has the right under this contract to ask the court to award as much as 25% of my past-due benefits for representing me in court. If the court 18 awards an attorney fee out of my past-due benefits and also awards an EAJA fee for that same work, my attorney must refund to me the smaller fee. 19 (ECF No. 29-2, p. 1). 20 The Court has considered the character of counsel’s representation of Plaintiff and the 21 results achieved by counsel, which included a remand that led to an award of benefits. Counsel 22 represents that 22.1 hours were expended in this matter. (ECF No. 29, p. 8; ECF No. 29-3, p. 1). 23 There is no indication of substandard performance by counsel and there is no evidence that 24 counsel engaged in any dilatory conduct resulting in delay. 25 However, the Court concludes that counsel has not met his “burden of establishing that the 26 fee sought is reasonable” when considering the amount of time spent on this case. See Crawford, 27

. Notably, counsel seeks an award of $40,570.48, which, although not greater 28 1 than 25% of the past-due benefits, results in an approximate hourly rate of $1835.76 based on the 2 22.1 hours expended. This is very high compared to what the Court has often seen requested in 3 other cases before it. See, e.g., Lockhart v. Comm’r of Soc. Sec., No. 1:20-CV-01336-ADA-EPG, 4

, at *3 (E.D. Cal. Feb. 28, 2023), report and recommendation adopted,

(E.D. Cal. May 3, 2023) (awarding effective hourly rate of approximately $700); 5 Ashmore v. Comm’r of Soc. Sec., No. 1:20-CV-00817-EPG,

, at *2 (E.D. Cal. 6 Dec. 5, 2022) (awarding effective hourly rate of approximately $750); Londono v. Comm’r of 7 Soc. Sec., No. 1:16-CV-01897-EPG,

, at *2 (E.D. Cal. Mar. 25, 2022) (awarding 8 effective hourly rate of approximately $470). 9 Moreover, rather than “show that the fee is reasonable based on the facts of the particular 10 case,” counsel cites to a list of fee awards in other cases, and without explaining whether the 11 circumstances of those cases are similar. Crawford,

; (ECF No. 29, p. 5). 12 Moreover, while one cited case awarded approximately $2,300 as an effective hourly rate, all the 13 remaining cases, except one awarding around $1,170 per hour, awarded amounts ranging from 14 $1,417.08 to $1,546.39, with most being in the $1400 range. Thus, according to counsel’s own 15 polling of cases that awarded fees on the high end, all but one awarded hundreds less than what 16 counsel now seeks. 17 Moreover, upon review of persuasive authority, the Court believes $1,835.76 “would 18 result in a windfall” based on the particular facts of this case. Crawford,

. 19 Notably, one court has concluded that a de facto hourly rate of $1,979.81, based on the amount of 20 time the Court deemed reasonably spent on the case, would constitute a manifest windfall when 21 the quality of the work did not justify this rate. Statler v. Astrue, No. CV 05-01213 AN,

195955, at *5 (C.D. Cal. Jan. 26, 2009). Here, while counsel filed a motion for summary 23 judgment, the case was resolved thereafter by a stipulation to voluntarily remand the case without further briefing. (ECF Nos. 19, 24, 25). Under similar circumstances, another court has concluded 24 that “an effective hourly rate of $1,624.82 is too high considering [the] case resolved through a 25 stipulated remand without full briefing,” reducing the effective hourly rate to $1,200. Demand v. 26 Comm’r of Soc. Sec. Admin., No. CV-18-08063-PCT-DLR,

, at *1 (D. Ariz. 27 Apr. 3, 2020); see also Norden v. Comm’r of Soc. Sec. Admin., No. CV-19-00373-PHX-JAT, 28 1

, at *2 (D. Ariz. June 25, 2020) (“The de facto hourly rate of the requested 2 award—$1,295.45—falls slightly outside the range of reasonableness that this Court, and others 3 in this district, have found reasonable in recent cases resolved by a stipulation to remand without 4 full briefing.”). Lastly, counsel states that his regular, non-contingent hourly rate is $500. While the Court understands that counsel undertook this case on a contingency fee basis, and has given 5 weight to this consideration, the fact that counsel seeks over three times his normal regular rate 6 also factors into the reasonableness of the award. Demand,

, at *1 (reducing 7 effective hourly rate that was “over five times greater than counsel’s $300.00 non-contingent 8 hourly rate”). For all these reasons, the Court determines that the requested fee would result in a 9 windfall, and thus it may be reduced. 10 As for the amount of the reduction, the Court concludes that an effective hourly rate of 11 $1,400 is appropriate, which when multiplied by the 22.1 hours expended on the case, yields an 12 award of $30,940. Notably, while this award is still on the high-end of cases, it falls in line with 13 most of the cases cited by counsel. Moreover, while this effective hourly rate is higher than 14 counsel’s normal rate, counsel is entitled to recover a higher fee based on the contingency 15 arrangement with Plaintiff. And relatedly, this still high hourly amount accounts for the fact that 16 counsel accepted substantial risk of loss in representing Plaintiff, whose application had already 17 been denied at the administrative level. 18 An award of attorney fees pursuant to § 406(b) in the amount of $30,940 is thus 19 appropriate. An award of § 406(b) fees, however, must be offset by any prior award of attorney 20 fees granted under the EAJA. See

; Gisbrecht,

. Plaintiff was 21 awarded $4,795.91 in EAJA fees, and counsel agrees to refund these fees. (ECF No. 29, p. 6). 22 III. CONCLUSION AND ORDER 23 For the reasons stated above, the Court finds that the attorney fees sought by Plaintiff’s counsel pursuant to § 406(b) are reasonable. Accordingly, IT IS ORDERED: 24 1. The motion for attorney fees (ECF No. 29) under

(b) is granted, in 25 part, in the amount of $30,940. 26 2. Plaintiff’s counsel shall refund Plaintiff $4,795.91 for the EAJA fees previously 27 awarded. 28 1 3. Plaintiff's counsel shall serve a copy of this order on Plaintiff and shall thereafter file a 2 | certificate of service on the docket. 3 4 IT IS SO ORDERED.

5| Dated: _ August 9, 2023 Fahey — 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28