1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3

4 Anthony Manning, CASE NO. 1:21-cv-00071-GSA 5 Plaintiff, 6 ORDER GRANTING MOTION FOR ATTORNEY v. FEES PURSUANT TO 42 U.S.C. 406(b) 7 (Doc. 21) 8 Commissioner of Social Security, 9 Defendant. 10

11 Plaintiff’s counsel Jonathan O. Peña seeks an award of attorney fees pursuant to

406(b). 13 I. Background 14 Plaintiff entered into a contingent fee agreement with counsel which provides for attorney fees of 15 up to 25% of the past due benefits awarded. Doc. 21-3. The agreement also provides that counsel would 16 seek fees pursuant to the Equal Access to Justice Act (EAJA), fees which would be refunded in the event 17 of an award of past due benefits and payment of the 25% contingency fee.

18 Plaintiff filed a complaint in this Court on January 18, 2021, appealing the Commissioner’s 19 decision denying his application for benefits. After Defendant filed the Administrative Record the parties 20 stipulated to remand the matter to the agency for further proceedings. Doc. 17. Counsel was awarded 21 EAJA fees in an amount of $1,847.78. Doc. 20. 22 On remand the agency determined that Plaintiff was disabled and entitled to past due benefits 23 (Doc. 21-2 at 1) from which the agency withheld 25% ($16,281) for potential payment to counsel.

at 24 3. Counsel seeks $8,281 from the amount withheld. 25 II. Legal Standard 26 An attorney may seek an award of fees for representation of a Social Security claimant who is 27 awarded benefits: 1 Whenever a court renders a judgment favorable to a claimant under [

, et seq] who was represented before the court by an attorney, the court may determine and allow 2 as 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 reason of such 3 judgment . . . 4

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

(2002) (Section 406(b) 5 controls fees awarded for representation of Social Security claimants). A contingency fee agreement is 6 unenforceable by the Court if it provides for fees exceeding the statutory amount. Gisbrecht,

807 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they 8 provide for fees exceeding 25 percent of the past-due benefits.”). 9 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 10 Hern v. Barnhart,

(N.D. Cal. 2003). However, the Court must review 11 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 12 particular cases.” Gisbrecht,

. In doing so, the Court should consider “the character of the 13 representation and the results the representative achieved.”

. In addition, the Court should 14 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 15 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 16 Crawford v. Astrue,

(9th Cir. 2009) (en banc); Vazquez v. Com'r of Soc. Sec., No. 17 1:17-CV-1646-JLT,

, at *2 (E.D. Cal. May 29, 2020). 18 III. Analysis 19 Here, Plaintiff was represented by experienced counsel and achieved a favorable result, namely an 20 order of remand, entry of judgment, and ultimately a substantial award of past due benefits. There is no 21 indication that counsel engaged in dilatory conduct, excessive delay, or substandard performance. The 22 parties settled the matter before the case was briefed. Counsel’s itemized bill reflects 9.1 hours of attorney 23 time to review the administrative record and draft a letter brief to opposing counsel—as the Court 24 previously required to facilitate settlement negotiations— which is a reasonable time expenditure for the 25 performance of those tasks. Doc. 21-4. 26 The effective hourly rate amounts to $910 per hour, which is fairly significant but is well within 27 the upper limit of reasonableness. See Malta v. Comm'r of Soc. Sec., No. 1:18-CV-00415-CDB, 2024

, at *3 (E.D. Cal. Aug. 1, 2024) (collecting cases and finding that “hourly rate of $1,553.87 2 is within the upper boundaries of reasonableness.”); Coder v. Comm'r of Soc. Sec., No. 1:20-cv-00497- 3 CDB,

, at *3 (E.D. Cal. Apr. 23, 2024) (reducing de facto hourly rate of $3,532.87 to 4 $1,500.00 per hour); Reyna v. Comm'r of Soc. Sec., No. 1:22-CV-00484-SAB,

, at *2 5 (E.D. Cal. Oct. 9, 2024) (approving de facto hourly rate of $1,326.57 per hour); Langston v. Saul, No. 6 1:18-CV-00273-SKO,

, at *3 (E.D. Cal. Aug. 5, 2020) ($1,453.42 per hour). 7 Although this is a substantial hourly rate, the fee award would not amount to a windfall. Unlike 8 fee motions governed entirely by the lodestar method, in contingency fee matters pursuant to section 9 406(b) the lodestar is merely a guidepost, and a comparatively high effective hourly rate is generally 10 warranted to compensate counsel for the risk assumed in representing social security claimants. See 11 Crawford v. Astrue,

(9th Cir. 2009). 12 The $8,281 total amount is also consistent with total contingent fee awards granted under section 13 406(b). See, e.g., Ortega v. Comm'r of Soc. Sec., No. 1:12–cv–01030–AWI–SAB,

, at 14 *3 (E.D. Cal. Aug. 21, 2015) ($24,350); Thomas v. Colvin, No. 1:11–cv–01291–SKO,

, 15 at *3 (E.D. Cal. Apr. 3, 2015) ($44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS,

6712552, at *2 (E.D. Cal. Dec. 19, 2013) ($20,577.57); Jamieson v. Astrue, No. 1:09-cv-00490-LJO-DLB, 17

, at *2 (E.D. Cal. Feb. 9, 2011) ($34,500). 18 Considering the character of the representation, the result achieved, and the fee amounts awarded 19 in similar cases, the request here is reasonable. 20 Accordingly, it is ORDERED as follows: 21 1. Counsel’s motion for attorney fees pursuant to 42 U.S.C. 406(b) (Doc. 21) is granted. 22 2. The Commissioner shall certify a payment of a gross award in the amount of $8,281 23 to: Jonathan O. Peña. 24 3. Upon receipt of this sum, Jonathan O. Peña shall remit directly to Plaintiff Anthony 25 Manning the EAJA fees previously awarded in the amount of $1,847.78 26 27 IT IS SO ORDERED. 1 UNITED STATES MAGISTRATE JUDGE

2

3

4

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27