1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 S.L., 10 Case No. 20-cv-04240-RS Plaintiff, 11 v. ORDER GRANTING MOTION FOR 12 ATTORNEY FEES KILOLO KIJAKAZI, 13 Defendant. 14

15 16 I. INTRODUCTION 17 Plaintiff’s counsel Harvey P. Sackett has moved to recover fees in this Social Security 18 action under

(b). See Dkt. 25-1. Pursuant to Civil Local Rule 7-1(b), this motion is 19 suitable for disposition without oral argument. For the reasons set forth below, the fees requested 20 are reasonable, and the motion is granted. 21 II. BACKGROUND 22 A more complete factual and procedural background is recited in the order granting 23 Plaintiff’s motion for summary judgment. See Dkt. 21. To summarize, Plaintiff S.L.1 originally 24 applied for Social Security Disability Insurance Benefits in July 2014. Her application was denied 25

26 1 This order maintains the practice of referring to Plaintiff only by her initials, given the sensitive medical information described throughout this action. This does not alter the degree of public 27 access to this or other public filings in this action, as provided by Rule 5.2(c) of the Federal Rules 1 and, following administrative appeals, Plaintiff sought judicial review in the immediate case in 2 June 2020. Judgment was entered in November 2021 awarding Plaintiff retroactive benefits. See 3 Dkt. 22. Following remand to the Social Security Administration, the agency determined Plaintiff 4 was owed $149,517.00 in benefits, with 25 percent, or $37,379.25, withheld for prospective 5 attorney fees. Pursuant to two separate stipulations by the parties, the government was also 6 ordered to pay Sackett a total of $8,744.00 in attorney fees under the Equal Access to Justice Act 7 (“EAJA”),

(d). See Dkt. 24.2 8 Sackett now moves to recover fees pursuant to

(b), arguing that the fee 9 request is reasonably calculated. The government filed a statement of non-opposition, stating that, 10 because it “was not a party to the contingent-fee agreement between [Sackett] and Plaintiff,” it is 11 “not in a position to either assent or object to the § 406(b) fees that Counsel seeks from Plaintiff’s 12 past-due benefits.” Dkt. 26, at 1. The government nevertheless offers its own analysis of the 13 motion in its role “resembling that of a trustee for Plaintiff.” Id. at 3 (quoting Gisbrecht v. 14 Barnhart,

, 798 n.6 (2002)). 15 III. LEGAL STANDARD 16 Section 406(b) of the Social Security Act provides that “[w]henever a court renders a 17 judgment favorable to a claimant . . . who was represented before the court by an attorney, the 18 court may determine and allow as part of its judgment a reasonable fee for such representation, not 19 in excess of 25 percent of the total of the past-due benefits.”

(b)(1)(A). This fee 20 derives from funds withheld from the past-due benefits payment by the SSA. 21 The Supreme Court has instructed courts to utilize attorney-client fee agreements as a 22 baseline when considering a fee motion under

(b). Gisbrecht, 535 U.S. at 807–08. 23 Courts must review such fee agreements “as an independent check, to assure that they yield 24 reasonable results in particular cases.”

. Specifically, the attorney’s recovery should be 25

26 2 The government was ordered to pay $5,500.00 in this action, and $3,244.00 in a preceding action 27 filed by Plaintiff regarding the same denial of benefits. See Dkt. 26, at 1–2. 1 analyzed “based on the character of the representation and the results the representative achieved.” 2

. The burden is on the attorney to “show that the fee sought is reasonable for the services 3 rendered.”

. 4 Gisbrecht identifies at least three examples of when a court-imposed fee reduction may be 5 warranted.

at 807–08; see also Crawford v. Astrue,

, 1151–52 (9th Cir. 2009) (en 6 banc). First, the fee may be reduced if the attorney’s representation is substandard. Gisbrecht, 535 7 U.S. at 808. Second, if “the attorney is responsible for delay . . . a reduction is in order so that the 8 attorney will not profit from the accumulation of benefits during the pendency of the case in 9 court.” Id. Third, if “the benefits are large in comparison to the amount of time counsel spent on 10 the case, a downward adjustment is similarly in order.” Id. Gisbrecht authorizes courts to consider 11 evidence of the hours incurred and the hourly rates normally charged in non-contingent matters 12 “as an aid to the court’s assessment of the reasonableness of the fee yielded by the fee agreement,” 13 but cautioned that such an inquiry should not rise to the level of “satellite litigation” over 14 fees. Id. When fee awards are made under both section 406(b) and the EAJA, the claimant’s 15 attorney must “refun[d] to the claimant the amount of the smaller fee.” Id. at 796; see also 28 16 U.S.C § 406(b)(1)(A). 17 IV. DISCUSSION 18 The agreement between Sackett and Plaintiff contemplates that Sackett may receive fees 19 up to the 25-percent statutory cap — that is, up to $37,379.25. The instant motion requests this full 20 amount, with the further understanding that Sackett will refund Plaintiff the $8,744.00 in EAJA 21 fees as required by § 406(b). While the fee agreement is relevant to the analysis under Gisbrecht, 22 the request itself ultimately must be evaluated based on its reasonableness. 23 Here, there is no evidence that Sackett’s representation was substandard, nor that he caused 24 any undue delay. The main analysis, then, is whether the fee request is reasonable in comparison 25 to the amount of time spent on the case. Sackett states he spent 40.25 hours on the case, meaning 26 the effective hourly fee he requests is $928.67. While this is significantly higher than the $688.00 27 that Sackett posits would be an acceptable fee for an attorney with his experience, see Dkt. 25-1, at 1 10, it is well within the range of fee requests approved in other Social Security cases — including 2 many in this District. See, e.g., Kristy Marie K. v. Saul, No. 20-cv-04156-DMR,

, 3 at *2 (N.D. Cal. Jan. 17, 2023) (finding $916.03 hourly rate reasonable); Harrell v. Berryhill, No. 4 16-cv-02428,

, at *4 (N.D. Cal. Sept. 24, 2018) (finding $1,213.83 hourly rate 5 reasonable); McCullough v. Berryhill, No. 16-cv-00625,

, at *2 (N.D. Cal. Nov. 6 15, 2018) (finding $874.72 hourly rate reasonable). Sackett further argues an upward variance is 7 || justifiable given the substantial risk of loss in Social Security cases. This, too, finds support in 8 case law. See, e.g., Hearn v. Barnhart,

(N.D. Cal. 2003); Crawford, 9 || 583 F.3d at 1149. Sackett’s fee request is, therefore, reasonably calculated. 10 V. CONCLUSION 11 The motion for attorney fees is granted. Sackett shall collect $37,379.25 in attorney fees 12 and must refund the EAJA fee awards, in the amount of $8,744.00, to S.L.

|) 1, ISSO ORDERED.

a 16 Dated: March 3, 2023

RICHARD SEEBORG Z 18 Chief United States District Judge 19 20 21 22 23 24 25 26 27 98 ORDER GRANTING MOTION FOR ATTORNEY FEES CASE No. 20-cv-04240-RS