1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDWARD H., Case No. 3:20-cv-02866-JSC

8 Plaintiff, ORDER RE: MOTION FOR 9 v. ATTORNEY’S FEES

10 MARTIN O'MALLEY, Re: Dkt. No. 27 Defendant. 11

12 13 Plaintiff’s counsel, Harvey Sackett, moves for attorney’s fees pursuant to

406(b) for representing Plaintiff in his successful appeal of the Commissioner of the Social 15 Security Administration’s denial of social security disability benefits. (Dkt. No. 27.1) After 16 careful consideration of Plaintiff’s motion and the relevant legal authority, the Court determines 17 oral argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS the motion for 18 attorney’s fees pursuant to Section 406(b). 19 BACKGROUND 20 This case stems from Plaintiff’s appeal of the Social Security Administration’s denial of 21 social security benefits for a combination of physical and mental impairments, including: history 22 of gunshot wound to the left leg, status-post surgery to insert a rod in the left leg, chronic pain in 23 the left leg, depressive disorder, and post-traumatic stress disorder. (Dkt. No. 20-1 at 9.) On April 24 27, 2021, the Court granted the parties’ joint stipulation to voluntary remand pursuant to sentence 25 four of

(g) and remanded the action to the SSA for further proceedings. (Dkt. No. 26 24.) On July 20, 2021, the Court granted the parties’ stipulation and awarded Plaintiff’s counsel 27 1 $3,947.59 in fees under the Equal Access to Justice Act (“EAJA”),

(d). (Dkt. No. 2 26.) 3 Following remand, the SSA found Plaintiff disabled. (Dkt. No. 27-2.) On September 19, 4 2023, Plaintiff was notified he had been awarded disability benefits as of August 26, 2011. (Id. at 5 11.) On January 19, 2024, Plaintiff was advised he had been awarded $142,248.06 in past due 6 benefits. (Dkt. No. 27-3.) Of this amount, $49,392 has been sent to Alameda County as 7 repayment for General Assistance payments Plaintiff received. (Dkt. No. 29 at 3.) After this 8 deduction, Plaintiff’s remaining backpay was $92,756.06, 25 percent of which ($23,189.02) has 9 been withheld for payment of attorney’s fees. (Id.2) Pursuant to Plaintiff and his counsel’s 10 contingency fee agreement for this case, counsel may seek fees up to 25 percent of any past-due 11 benefits awarded to Plaintiff. (Dkt. No. 27-4.) Plaintiff now seeks attorney’s fees in the amount 12 of $23,189.02. Plaintiff's counsel served Plaintiff with a copy of the motion. (Dkt. No. 27-8.) The 13 Commissioner filed a response in which he took no position on Plaintiff’s motion. (Dkt. No. 32.) 14 LEGAL STANDARD 15 Section 406(b) provides “[w]henever a court renders a judgment favorable to a [social 16 security] claimant under this subchapter who was represented before the court by an attorney, the 17 court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney; 18 such a fee can be no more than 25 percent of the total of past-due benefits awarded to the claimant. 19

(b)(1)(A). A court may award such a fee even if the court’s judgment did not 20 immediately result in an award of past-due benefits; where the court, for instance, remands for 21 further consideration, the court may calculate the 25 percent fee based upon any past-due benefits 22 awarded on remand. See, e.g., Crawford v. Astrue,

(9th Cir. 2009) (en banc). 23 Under Section 406(b), a court must serve “as an independent check” of contingency fee 24 agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart,

, 25 807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory 26

27 2 SSA has not provided an updated notice of award to reflect this information. Instead, it is 1 ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by 2 those agreements.”

. The court’s review of a fee agreement is based on the character 3 of the representation and the results achieved, see Gisbrecht,

, and can include 4 analyzing: whether counsel provided substandard representation; any dilatory conduct by counsel 5 to accumulate additional fees; whether the requested fees are excessively large in relation to the 6 benefits achieved; and the risk counsel assumed by accepting the case. See Crawford,

1151-52. 8 A court must offset an award of Section 406(b) attorneys’ fees by any award of fees 9 granted under the EAJA. See Gisbrecht,

; Parrish v. Comm’r of Soc. Sec. Admin., 10

(9th Cir. 2012). 11 DISCUSSION 12 Plaintiff’s counsel has demonstrated the amount of fees requested is reasonable for the 13 services rendered. See Gisbrecht,

. 14 First, while not dispositive, Plaintiff’s and counsel’s contingency fee agreement is within 15 the 25 percent threshold permitted under Section 406(b), as the agreement provides counsel will 16 not ask for a fee of more than 25 percent of the total past-due benefits awarded. (Dkt. No. 27-4.) 17 Second, there is no indication a reduction in fees is warranted due to any substandard 18 performance by counsel or counsel delayed these proceedings in an effort to increase the amount 19 of fees awarded. To the contrary, counsel provided substantial work and achieved favorable results 20 for Plaintiff as the Commissioner agreed to a voluntary remand for further proceedings after 21 receipt of Plaintiff’s motion for summary judgment. (Dkt. No. 23.) 22 Nor is the amount of fees, $23,189.02, excessive. See, e.g., Ciletti v. Berryhill, No. 17-CV- 23 05646-EMC,

, at *2 (N.D. Cal. Jan. 9, 2019) (awarding $35,442.00 in fees 24 following an award of $150,993 in past-due benefits); G.S. v. Kijakazi, No. 19-CV-07543-JSC, 25

, at *2 (N.D. Cal. May 9, 2022) (awarding fees in the amount of $30,233 26 following a past-due benefit 3 award of $120,932); Eckert v. Berryhill, No. 15-CV-04461-JCS, 27

, at *3 (N.D. Cal. Sept. 11, 2017) (awarding $16,566.25 in fees following an 1 2462194, at *2 (N.D. Cal. June 7, 2017) (awarding $15,278.00 in fees following an award of 2 $76,391.00 in retroactive benefits). 3 Lastly, the Court finds Plaintiffs counsel assumed a substantial risk of not recovering fees 4 || when he accepted this case. At the time counsel filed this action, the SSA had completely denied 5 || Plaintiff any requested benefits, and counsel could not know the Commissioner would agree to a 6 || remand. Accordingly, the Court finds the amount of requested fees is reasonable. 7 CONCLUSION 8 For the reasons described above, the Court GRANTS Plaintiffs counsel’s motion for fees. 9 The Commissioner is directed to certify fees under

(b) in the amount of 10 || $23,189.02 payable to the Law Office of Sackett and Associates. Plaintiffs counsel is ordered to 11 refund the previously awarded EAJA fees, in the amount of $3,947.59 to Plaintiff. 12 This Order disposes of Docket No. 27.

IT IS SO ORDERED. 3 15 Dated: April 19, 2024 16 . Fruitland □ 8 JAQQUELINE SCOTT CORL United States District Judge 19 20 21 22 23 24 25 26 27 28