1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL. P. BRISK, Case No. 1:21-cv-00430-BAM 12 Plaintiff, ORDER GRANTING MOTION FOR AUTHORIZATION OF ATTORNEY’S 13 v. FEES UNDER

(b) 14 MARTIN O’MALLEY, Commissioner of (Doc. 27) Social Security,1 15 Defendant. 16 17 I. Introduction 18 Jonathan Pena (“Counsel”), attorney for Carl P. Brisk (“Plaintiff”), filed a motion for 19 attorney fees pursuant to

(b) on February 29, 2024. (Doc. 27.) Although served 20 with a copy of the motion, (Doc. 28), Plaintiff did not file a response. On March 7, 2024, the 21 Commissioner filed a response to the motion, indicating the Commissioner neither supports nor 22 opposes the request for attorney’s fees. (Doc. 29 at 3.) 23 Having considered the motion and record in this case, the Court will grant the motion in 24 the amount of $26,593.75, subject to an offset of $533.18 in fees already awarded pursuant to the 25 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 March 15, 2021. (Doc. 1.) On May 9, 2022, pursuant to the parties’ stipulation, the 4 Court remanded the action for further proceedings pursuant to sentence four of

405(g). (Doc. 23.) Judgment was entered in Plaintiff’s favor. (Doc. 24.) On August 8, 2022, the 6 Court approved the parties’ stipulation to award Plaintiff attorney fees of $7,017.76 pursuant to 7 the EAJA. (Doc. 26.) 8 On remand, an administrative law judge issued a favorable decision. (Doc. 27 at 3.) The 9 Commissioner then issued a Notice of Award indicating that the Social Security Administration 10 withheld $26,593.75 from Plaintiff’s past-due benefits to pay his representative. (Doc. 27 at 3; 11 Doc. 27-1, Ex. A.) Based on the withholding, Counsel calculates the total past-due benefits as 12 $106,375.00. (Doc. 27 at 3.) Counsel previously was awarded $7,017.76 in EAJA fees, but 13 received only $533.18. (Doc. 27 at 3, Declaration of Jonathan Pena ¶ 10 (“Counsel was 14 previously awarded an EAJA fee of $7,017.76. However, counsel only received $533.18.”) and 15 Ex. D.) Counsel intends to refund to Plaintiff the $533.18 previously awarded in EAJA fees. 16 (Doc. 27 at 6.) 17 Counsel seeks approval of attorney fees in the total amount of $26,593.75, which is equal 18 to 25% of the amount withheld by the Commissioner. Out of this amount, Counsel will refund to 19 Plaintiff EAJA fees previously awarded in the amount of $533.18. (Doc. 27 at 6.) Plaintiff 20 retained Counsel to represent Plaintiff in federal court in an appeal from the administrative denial 21 of disability benefits, and agreed to pay Counsel a contingent fee of 25% of any past due benefits 22 obtained for that federal court work. (Id. at 4-5; Doc. 27-2, Ex. B.) 23 Counsel contends that the 25% fee amount is reasonable considering the favorable 24 outcome for Plaintiff, ultimately resulting in remand for further administrative proceedings and a 25 significant award of past due benefits. (Doc. 27 at 5.) As noted, Plaintiff did not file any 26 objection to Counsel’s request. 27 II. Legal Standard 28 An attorney may seek an award of fees for representation of a Social Security claimant 1 who is awarded benefits:

2 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 3 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 4 reason of such judgment . . . . 5

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

(2002) (Section 6 406(b) controls fees awarded for representation of Social Security claimants in court). A 7 contingency fee agreement is unenforceable if it provides for fees exceeding twenty-five percent 8 of past-due benefits.

. “[A]n award of section 406(b) fees is 9 offset by an award of attorney fees granted under the EAJA.” Jones v. Comm’r of Soc. Sec., No. 10 1:17-cv-00846-SAB,

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

at 796). 12 III. Discussion and Analysis 13 District courts “have been deferential to the terms of contingency fee contracts in § 406(b) 14 cases.” Hearn v. Barnhart,

(N.D. Cal. 2003). However, the Court 15 must review contingent-fee arrangements “as an independent check, to assure that they yield 16 reasonable results in particular cases.” Gisbrecht,

. In doing so, the Court should 17 consider “the character of the representation and the results the representative achieved.”

at 18 808. In addition, the Court should consider whether the attorney performed in a substandard 19 manner or engaged in dilatory conduct or excessive delays, and whether the fees are “excessively 20 large in relation to the benefits received.” Crawford v. Astrue,

(9th Cir. 21 2009) (en banc). 22 In this case, after carefully considering the fee agreement and the applicable law, the 23 Court finds Counsel’s requested fees to be reasonable. In support of the motion for attorneys’ fees 24 under

(b), Counsel attached the contingent fee agreement which provided for a 25 contingent fee of 25% of the past-due benefits. (Doc. 27-2, Ex. B.) Counsel accordingly 26 accepted the risk of loss in the representation. As a result of Counsel’s work before the Court, the 27 matter was remanded for further proceedings and the Commissioner awarded Plaintiff benefits. 28 Plaintiff’s counsel provided a copy of the motion for attorney’s fees to Plaintiff. (Doc. 28.) 1 Although served with the motion, Plaintiff did not challenge the requested fees, which attests to 2 their reasonableness. 3 Additionally, there is no indication counsel performed in a substandard manner or 4 engaged in severe dilatory conduct to the extent that a reduction in fees is warranted. Plaintiff was 5 able to secure a remand for further proceedings at the district court level and a subsequent award 6 of past-due benefits. The Court notes that the Commissioner stipulated to remand after Plaintiff 7 filed an opening brief in this action. (Docs. 20, 22, 23.) There is no indication that the fees 8 requested are excessively large in relation to the benefits received. Counsel expended a total of 9 30.4 hours while representing Plaintiff before the district court. (Doc. 27 at 5; Pena Decl. ¶ 8; 10 Doc. 27-3 (itemization of time).) The effective hourly rate requested equals $874.79 per hour. 11 (See Doc. 27 at 5; Pena Decl. ¶ 9.) This hourly rate is not excessive when compared to what 12 district courts in the Ninth Circuit have approved in cases involving social security contingency 13 fee arrangements. See Garcia v. O'Malley, No. 1:20-cv-01366-SKO,

, at *3 14 (E.D. Cal. Mar. 14, 2024) (collecting cases and finding effective hourly rate of $2,307.69 per 15 hour not excessive). 16 Accordingly, the Court finds the fees sought by Counsel are reasonable in light of the 17 results achieved in this action. An award of attorney’s fees pursuant to section 406(b) in the 18 amount of $26,593.75 is appropriate, but must be offset by any prior award of attorney’s fees 19 granted under the EAJA. Gisbrecht,

. As Plaintiff was previously awarded 20 $7,017.76 in fees pursuant to EAJA, but received only $533.18, Counsel shall refund the amount 21 of $533.18 to Plaintiff. 22 IV. Conclusion and Order 23 Based upon the foregoing, the Court ORDERS: 24 1. Counsel’s motion for attorney fees under

(b) (Doc. 27) is 25 GRANTED; 26 2. The Court approves an attorney fee award of $26,593.75 pursuant to

406(b), subject to an offset of the prior EAJA fee award received by Counsel; 28 /// 1 3. Plaintiff’s counsel shall compensate Plaintiff in the amount of $533.18 as an offset 2 for fees previously awarded and received pursuant to the EAJA. 3 IT IS SO ORDERED. 4

5 Dated: April 9, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6

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