1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 GEORGINA E. GARCIA, Case No. 1:20-cv-01366-SKO 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 v. COUNSEL’S MOTION FOR ATTORNEY’S FEES PURSUANT TO 12 MARTIN O’MALLEY,

(b) Acting Commissioner of Social Security1, 13 (Doc. 20) Defendant. / 14 15 I. INTRODUCTION 16 17 On February 12, 2024, Jared Walker, Esq. (“Counsel”), counsel for Plaintiff Georgina E. 18 Garcia (“Plaintiff”), filed a motion for an award of attorney’s fees pursuant to

(b) 19 (“section 406(b)”). (Doc. 20.) On February 13, 2024, the Court issued a minute order requiring 20 Plaintiff and the Commissioner to file their responses in opposition or statements of non-opposition 21 to Counsel’s motion, if any, in accordance with this Court’s Local Rules. (Doc. 21.) Plaintiff and 22 the Commissioner were served with copies of the motion for attorney’s fees and the minute order. 23 (Doc. 20 at 8; Doc. 22.) 24 On February 22, 2024, the Commissioner timely filed a response, acknowledging he “has 25 no direct financial stake in the outcome of this motion,” and instead “plays a part in the fee 26

27 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42

(g) (referring to the “Commissioner’s Answer”);

(d) (“the person holding the Office 1 determination resembling that of a trustee for the claimants.” (Doc. 23 at 1.) In this capacity, the 2 Commissioner “neither supports nor opposes Counsel’s request for attorney’s fees in the amount of 3 $15,000.00, under

(b).” (Id.) Plaintiff did not file any objection to the motion by 4 the deadline (See Docket). 5 For the reasons set forth below, Counsel’s motion for an award of attorney’s fees is granted 6 in the amount of $15,000.00, subject to an offset of $1,799.29 in fees and costs already awarded 7 pursuant to the Equal Access to Justice Act (“EAJA”),

, on September 30, 2021 8 (see Doc. 19). 9 II. BACKGROUND 10 Plaintiff brought the underlying action seeking judicial review of a final administrative 11 decision denying her claim for disability benefits under the Social Security Act. (Doc. 1.) The 12 parties stipulated to voluntarily remand the case pursuant to sentence four of

(g) on 13 June 29, 2021, and judgment was entered in favor of Plaintiff and against the Commissioner on July 14 1, 2021. (Docs. 15, 16, & 17.) The parties stipulated to an award of $1,799.29 in attorney fees and 15 costs under EAJA, which was entered on September 30, 2021. (Docs. 18 & 19.) 16 On remand, the Administrative Law Judge (“ALJ”) found Plaintiff disabled. (See Doc. 20 17 at 5.) On November 1, 2023, the Commissioner issued a letter to Plaintiff approving her claim for 18 benefits and awarding her $110,113.48 in back payments beginning May 2018. (See Doc. 20-3.) 19 On February 12, 2024, Counsel filed a motion for attorney’s fees in the amount of $15,000.00, equal 20 to 13.6% of Plaintiff’s back benefits, with an offset of $1,799.29 for EAJA fees and costs already 21 awarded. (Doc. 20.) It is Counsel’s section 406(b) motion for attorney’s fees that is currently 22 pending before the Court. 23 III. DISCUSSION 24 Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which 25 they have successfully represented social security claimants. Section 406(b) provides the following: 26 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and 27 allow as part of its judgment a reasonable fee for such representation, not in excess 28 of 25 percent of the total of the past-due benefits to which the claimant is entitled by 1 the amount of such fee for payment to such attorney out of, and not in addition to, 2 the amount of such past-due benefits . . . . 3

(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting 4 provisions such as

, the fee is paid by the claimant out of the past-due benefits 5 awarded; the losing party is not responsible for payment.” Crawford v. Astrue,

, 1147 6 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart,

(2002)). The 7 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee 8 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs.,

324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht,

. The goal of 10 fee awards under section 406(b) is to provide adequate incentive to represent claimants while 11 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. 12 Bowen,

(8th Cir. 1989), abrogated on other grounds in Gisbrecht,

807.1 14 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 15 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (Section 406(b) does not displace 16 contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to 17 review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . 18 the attorney for the successful claimant must show that the fee sought is reasonable for the services 19 rendered.”

; see also Crawford,

(holding that section 406(b) “does not 20 specify how courts should determine whether a requested fee is reasonable” but “provides only that 21 the fee must not exceed 25% of the past-due benefits awarded”). 22 Generally, “a district court charged with determining a reasonable fee award under 23 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking 24 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford,

1148 (quoting Gisbrecht,

). The United States Supreme Court has identified 26 several factors that may be considered in determining whether a fee award under a contingent-fee 27 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the 28 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in 1 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 2 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 3 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent 4 cases.

(citing Gisbrecht, 535 U.S. at 807–08). 5 As payment for legal services rendered in connection with the federal court claim described in paragraph 1 above, and in lieu of paying hourly rates for legal services, 6 Client shall pay Jared T. Walker Twenty-Five percent (25%) of any and all 7 retroactive benefits the Social Security Administration awards to Client (including Client’s dependents and/or survivors, as determined by the Social Security 8 Administration) in connection with Client ‘s claim. This includes Twenty-Five percent (25%) of any and all retroactive Social Security Disability benefits (also 9 called SSDI or Title II benefits), as well as Twenty-Five percent (25%) of any and all retroactive Supplemental Security Income benefits (also called SSI or Title XVI 10 benefits). Client has been advised and understands the terms of this fee agreement 11 are not established by law and are otherwise negotiable. 12 (Doc. 20-1 (signed September 18, 2020).) 13 The Court has considered the character of Counsel’s representation of Plaintiff and the good 14 results achieved by Counsel, which included an award of benefits. Counsel spent 6.50 hours 15 representing Plaintiff, ultimately gaining a favorable decision in that the Commissioner stipulated 16 to remand the decision back to the agency for reconsideration. (Docs. 15 & 16; Doc. 20-4 (time 17 sheet accounting for 6.50 attorney hours spent representing Plaintiff before this Court).) There is 18 no indication that a reduction of the award is warranted due to any substandard performance by 19 Counsel, as they secured a successful result for Plaintiff. There is also no evidence that Counsel 20 engaged in any dilatory conduct resulting in delay. 21 Although the accepted range in the Fresno Division for attorneys is between $175 and $380 22 per hour in non-contingency cases, see Silvester v. Harris, No. 1:11–CV–2137-AWI-SAB, 2014

at *4 (E.D. Cal. Dec. 17, 2014), here the effective hourly rate requested equals 24 $2,307.69 per hour (see Doc. 23 at 2 n.2). This hourly rate is not excessive when compared to what 25 the Ninth Circuit has approved in cases involving social security contingency fee arrangements. See 26 Crawford,

(9th Cir. 2009) (explaining that the majority opinion found 27 reasonable effective hourly rates equaling $519, $875, and $902) (J. Clifton, concurring in part and 28 dissenting in part); see also Thomas v. Colvin, No. 1:11−cv−01291−SKO,

, at 1 *2−3 (E.D. Cal. Apr. 3, 2015) (upholding an effective hourly rate of $1,093.22 for 40.8 hours of 2 work); Jamieson v. Astrue, No. 1:09-cv-0490-LJO-DLB,

, at *2 (E.D. Cal. Feb. 9, 3 2011) (upholding an effective hourly rate of $1,169.49 for 29.5 hours of work); Palos v. Colvin, No. 4 CV 15−04261−DTB,

, at *2 (C.D. Cal. Sept. 20, 2016) (upholding an effective 5 hourly rate of $1,546.39 for 9.7 hours of work); Villa v. Astrue, No. CIV−S−06−0846 GGH, 2010

, at *1−2 (E.D. Cal. Jan. 7, 2010) (approving section 406(b) fees exceeding $1,000 per 7 hour for 10.4 hours of work, and noting that “[r]educing § 406(b) fees after Crawford is a dicey 8 business”). Further, attorney’s fees in the amount of $15,000 do not exceed (and are in fact less 9 than) 25% of the past-due benefits awarded and are not excessive in relation to the past-due award.2 10 See generally Ortega v. Comm’r of Soc. Sec., No. 1:12–cv–01030–AWI–SAB,

, 11 at *3 (E.D. Cal. Aug. 21, 2015) (granting petition for an award of attorney’s fees pursuant to section 12 406(b) in the amount of $24,350.00); Thomas,

, at *3 (granting petition for an 13 award of attorney’s fees pursuant to section 406(b) in the amount of $44,603.50); Boyle v. Colvin, 14 No. 1:12–cv–00954–SMS,

, at *2 (E.D. Cal. Dec. 19, 2013) (granting petition 15 for an award of attorney’s fees pursuant to section 406(b) in the amount of $20,577.57); Jamieson, 16

, at *2 (recommending an award of attorney’s fees pursuant to section 406(b) in 17 the amount of $34,500). 18 In making this determination, the Court recognizes the contingent-fee nature of this case and 19 Counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. “District courts 20 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases.” Hearn 21 v. Barnhart,

(N.D. Cal. 2003) (“Because attorneys like Mr. Sackett 22 contend with a substantial risk of loss in Title II cases, an effective hourly rate of only $450 in 23 successful cases does not provide a basis for this court to lower the fee to avoid a ‘windfall.’” 24 (quoting Gisbrecht,

)). Attorneys who agree to represent claimants pursuant to a 25 contingent fee agreement assume the risk of receiving no compensation for their time and effort if 26 2 There appears to be confusion between Counsel and the Social Security Administration as to the amount of past-due 27 benefits awarded to Plaintiff. (See Doc. 20 at 3 (noting that the Social Security Administration’s written notice to “confusingly states Ms. Garcia has been awarded retroactive benefits in differing amounts.”).) Even if the alternative 28 amount of $119,500.00 is considered as past-due benefits, however, Counsel’s fee request is still below the 25% 1 the action does not succeed.

Here, Counsel accepted substantial risk of loss in representing 2 Plaintiff, whose application had already been denied at the administrative level. Plaintiff agreed to 3 the contingent fee. (See Doc. 20-1.) Working efficiently and effectively, Counsel secured a 4 stipulated remand, and ultimately, the award of substantial benefits to Plaintiff. (See Docs. 15, 16, 5 20-3.) 6 An award of attorney’s fees pursuant to section 406(b) in the amount of $15,000.00 is, 7 therefore, appropriate. An award of section 406(b) fees, however, must be offset by any prior award 8 of attorney’s fees and costs granted under the EAJA.

; Gisbrecht,

. 9 As Plaintiff was previously awarded $1,799.29 in fees and costs pursuant to the EAJA, Counsel 10 shall refund this amount to Plaintiff. 11 IV. CONCLUSION AND ORDER 12 For the reasons set forth, the Court concludes that the fees sought by Counsel pursuant to 13 section 406(b) are reasonable. Accordingly, IT IS ORDERED that: 14 1. Counsel’s motion for an award of attorney’s fees pursuant to

(b) in 15 the amount of $15,000 (Doc. 20) is granted; 16 2. Counsel shall refund to Plaintiff $1,799.29 of the section 406(b) fees awarded as an 17 offset for the EAJA fees and costs previously awarded pursuant to

(Doc. 19); 18 3. Counsel for Plaintiff shall file on the Court’s docket proof of service of this order 19 upon Plaintiff at her current or last known address. 20 IT IS SO ORDERED. 21

22 Dated: March 13, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23

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