1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KARL JON-PAUL WUEST, Case No. 1:21-cv-00716-BAM 12 Plaintiff, ORDER GRANTING MOTION FOR AUTHORIZATION OF ATTORNEY’S 13 v. FEES UNDER

(b) 14 MARTIN O’MALLEY, Commissioner of (Doc. 20) Social Security,1 15 Defendant. 16 17 I. Introduction 18 Roger Drake (“Counsel”), attorney for Karl Jon-Paul Wuest (“Plaintiff”), filed a motion 19 for attorney fees pursuant to

(b) on January 31, 2024. (Doc. 20.) Although 20 served with a copy of the motion, (id. at 9), Plaintiff did not file a response. On March 15, 2023, 21 the Commissioner filed a response to the motion, indicating the Commissioner neither supports 22 nor opposes the request for attorney’s fees. (Doc. 21.) 23 Having considered the motion and record in this case, the Court will grant the motion in 24 the amount of $10,229.75, subject to an offset of $3,600.00 in fees already awarded pursuant to 25 the Equal Access to Justice Act (“EAJA”),

. 26 /// 27 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 28 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley is substituted as the defendant in this suit. 1 II. Relevant Background 2 Plaintiff, through Counsel, filed this action challenging the denial of social security 3 benefits on May 3, 2021. (Doc. 1.) On May 3, 2022, pursuant to the parties’ stipulation, the 4 Court remanded the action for further proceedings pursuant to sentence four of

405(g). (Doc. 16.) Judgment was entered in Plaintiff’s favor. (Doc. 17.) On May 16, 2022, the 6 Court approved the parties’ stipulation to award Plaintiff attorney fees of $3,600.00 pursuant to 7 the EAJA. (Doc. 19.) 8 On remand, an administrative law judge issued a favorable decision. (Doc. 20 at 3.) The 9 Commissioner then issued a letter to Plaintiff indicating that the Social Security Administration 10 usually withholds 25 percent of past due benefits in order to pay the representative’s fee and that 11 $10,229.75 was withheld from Plaintiff’s past due benefits to pay her representative. (Doc. 20 at 12 3; Doc. 20-1, Ex. A.) Based on the withholding, Counsel calculates the total past-due benefits as 13 $40,919.00. (Doc. 20 at 3.) Counsel previously received payment of $3,600.00 in EAJA fees. 14 (Doc. 20, Declaration of Roger Drake ¶ 5) (“Plaintiff’s counsel was previously awarded $3,600 in 15 EAJA fees.”).) Counsel intends to refund to Plaintiff the $3,600.00 previously awarded in EAJA 16 fees. Counsel represented Plaintiff in the administrative proceedings on remand and also intends 17 to seek $3,600.00 in administrative fees under

(a) for work done before the 18 Commissioner. (Id. at 3.) 19 It appears from the moving papers that Counsel seeks approval of attorney fees in the total 20 amount of $10,229.75, which is equal to 25% of the amount withheld by the Commissioner. Out 21 of this amount, Counsel will refund to Plaintiff EAJA fees previously awarded in the amount of 22 $3,600.00. (Doc. 20 at 6.) Plaintiff retained Counsel to represent Plaintiff in federal court in an 23 appeal from the administrative denial of disability benefits, and agreed to pay Counsel a 24 contingent fee of 25% of any past due benefits obtained for that federal court work. (Id. at 4; 25 Doc. 20-2, Ex. B, ¶ 6.) 26 Counsel contends that the 25% fee amount is reasonable considering the favorable 27 outcome for Plaintiff, ultimately resulting in remand for further administrative proceedings and a 28 significant award of past due benefits. (Doc. 20 at 4.) Counsel points out that the case was 1 voluntarily remanded only after Counsel filed the opening brief. (See Docs. 14, 15, 16.) As 2 noted, Plaintiff did not file any objection to Counsel’s request. 3 II. Legal Standard 4 An attorney may seek an award of fees for representation of a Social Security claimant 5 who is awarded benefits:

6 Whenever a court renders a judgment favorable to a claimant . . . who was represented before the court by an attorney, the court may determine and allow as 7 part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by 8 reason of such judgment . . . . 9

(b)(1)(A); see also Gisbrecht v. Barnhart,

(2002) (Section 10 406(b) controls fees awarded for representation of Social Security claimants in court). A 11 contingency fee agreement is unenforceable if it provides for fees exceeding twenty-five percent 12 of past-due benefits.

. “[A]n award of section 406(b) fees is 13 offset by an award of attorney fees granted under the EAJA.” Jones v. Comm’r of Soc. Sec., No. 14 1:17-cv-00846-SAB,

, at *2 (E.D. Cal. Jan. 11, 2021) (citing Gisbrecht,

at 796). 16 III. Discussion and Analysis 17 District courts “have been deferential to the terms of contingency fee contracts in § 406(b) 18 cases.” Hearn v. Barnhart,

(N.D. Cal. 2003). However, the Court 19 must review contingent-fee arrangements “as an independent check, to assure that they yield 20 reasonable results in particular cases.” Gisbrecht,

. In doing so, the Court should 21 consider “the character of the representation and the results the representative achieved.”

at 22 808. In addition, the Court should consider whether the attorney performed in a substandard 23 manner or engaged in dilatory conduct or excessive delays, and whether the fees are “excessively 24 large in relation to the benefits received.” Crawford v. Astrue,

(9th Cir. 25 2009) (en banc). 26 In this case, after carefully considering the fee agreement and the applicable law, the 27 Court finds Counsel’s requested fees to be reasonable. In support of the motion for attorneys’ fees 28 under

(b), Counsel attached the contingent fee agreement which provided for a 1 contingent fee of 25% of the past-due benefits. (Doc. 20-2, Ex. B.) Counsel accordingly 2 accepted the risk of loss in the representation. As a result of Counsel’s work before the Court, the 3 matter was remanded for further proceedings and the Commissioner awarded Plaintiff benefits. 4 Plaintiff’s counsel provided a copy of the motion for attorney’s fees to Plaintiff. (Doc. 20 at 9.) 5 Although served with the motion, Plaintiff did not challenge the requested fees, which attests to 6 their reasonableness. 7 Additionally, there is no indication counsel performed in a substandard manner or 8 engaged in severe dilatory conduct to the extent that a reduction in fees is warranted. Plaintiff was 9 able to secure a remand for further proceedings at the district court level and a subsequent award 10 of past-due benefits. There is no indication that the fees requested are excessively large in 11 relation to the benefits received. Counsel expended a total of 16.9 hours while representing 12 Plaintiff before the district court. (Doc. 20 at 5; Drake Decl. ¶ 12; Doc. 20-3 (time sheet).) The 13 effective hourly rate requested equals $605.31 per hour. (See Doc. 20 at 5; Drake Decl. ¶ 13.) 14 This hourly rate is not excessive when compared to what district courts in the Ninth Circuit have 15 approved in cases involving social security contingency fee arrangements. See Garcia v. 16 O'Malley, No. 1:20-cv-01366-SKO,

, at *3 (E.D. Cal. Mar. 14, 2024) 17 (collecting cases and finding effective hourly rate of $2,307.69 per hour not excessive). 18 Accordingly, the Court finds the fees sought by Counsel are reasonable in light of the 19 results achieved in this action. An award of attorney’s fees pursuant to section 406(b) in the 20 amount of $10,229.75 is appropriate, but must be offset by any prior award of attorney’s fees 21 granted under the EAJA. Gisbrecht,

. As Plaintiff was previously awarded 22 $3,600.00 in fees pursuant to EAJA, Counsel shall refund that amount to Plaintiff. 23 IV. Conclusion and Order 24 Based upon the foregoing, the Court ORDERS: 25 1. Counsel’s motion for attorney fees under

(b) (Doc. 20) is 26 GRANTED; 27 2. The Court approves an attorney fee award of $10,229.75 pursuant to

406(b), subject to an offset of the prior EAJA fee award; 1 3. Plaintiff’s counsel shall compensate Plaintiff in the amount of $3,600.00 as an 2 offset for fees previously awarded pursuant to the EAJA. 3 IT IS SO ORDERED. 4

5 Dated: April 8, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6

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