Herlickman v. Saul

• Court: District Court, S.D. California
• Decided: September 13, 2023
• Docket: 3:19-cv-02446-AGS
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 BARRY H., Case No.: 3:19-cv-2446-AGS 4 Plaintiff, ORDER GRANTING MOTION FOR 42 U.S.C. § 406(b) FEES (ECF 26) 5 v. 6 Kilolo KIJAKAZI, 7 Defendant. 8 9 Plaintiff’s counsel moves for attorney’s fees under 42 U.S.C. § 406(b). Counsel 10 requests $16,102.00, offset by an order “to reimburse [plaintiff] the amount of $3,600.00 11 for the EAJA fees previously paid.” (ECF 26-1, at 1.) This request represents just under 12 25% of plaintiff’s past-due benefits, which total $64,408.70. (ECF 26-4, at 2.) Plaintiff has 13 not objected. (See ECF 26-1, at 19; ECF 27.) 14 “Whenever a court renders a judgment favorable to a claimant,” “the court may 15 determine and allow as part of its judgment a reasonable fee for such representation, not in 16 excess of 25 percent of the total of the past-due benefits . . . .” 42 U.S.C. § 406(b). 17 In evaluating an attorney-fee request, courts “must respect the primacy of lawful attorney- 18 client fee arrangements,” “looking first to the contingent-fee agreement, then testing for 19 reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (citation 20 omitted). “Within the 25 percent boundary, . . . the attorney for the successful claimant 21 must show that the fee sought is reasonable for the services rendered.” Gisbrecht v. 22 Barnhart, 535 U.S. 789, 807 (2002). Factors the court may consider in evaluating the 23 reasonableness of the attorney-fee award are: “(1) the character of the representation; 24 (2) the results achieved; (3) whether the attorney engaged in dilatory conduct; (4) whether 25 the benefits are large in comparison to the amount of time counsel spent on the case; and 26 (5) the attorney’s record of hours worked and counsel’s regular hourly billing charge for 27 non-contingent cases.” Avina v. Saul, No. 18-CV-1728-W-MSB, 2021 WL 2662309, at *1 28 (S.D. Cal. June 29, 2021). 1 Plaintiff assented in his contingency agreement to a fee of “25% of the past due 2 benefits awarded upon reversal of any unfavorable ALJ decision for work before the 3 court.” (ECF 26-2, at 1.) This bargained-for percentage is presumptively valid and may be 4 reduced only if warranted by the character and results of the representation. See Gisbrecht, 5 535 U.S. at 807–08. Here, counsel invested his resources on contingency, fully litigated 6 cross-motions for summary judgment, and achieved remand for his client. (See ECF 15, 7 18, 20.) On remand, plaintiff secured a “fully favorable” decision (ECF 26-3) and was 8 granted past-due disability benefits of $64,408.70 (ECF 26-4, at 2). There is no evidence 9 of dilatory conduct or undue delay. Indeed, counsel expended only 19 hours to achieve 10 these results, which is eminently reasonable. (See ECF 26-1, at 4); see also Patterson v. 11 Apfel, 99 F. Supp. 2d 1212, 1214 n.2 (C.D. Cal. 2000) (finding “33.75 hours spent by 12 plaintiff’s counsel” to fall “within the approved range” for fees after surveying “several 13 dozen cases in which attorney’s fees were awarded in social security cases”). 14 Counsel appears to have been so efficient, in fact, that the effective hourly rate was 15 boosted to a seemingly lofty $847.47. Yet given the substantial results achieved, this figure 16 is not unreasonable compared to fees that courts have approved. See Sproul v. Astrue, No. 17 11-CV-1000-IEG DHB, 2013 WL 394056, at *2 (S.D. Cal. Jan. 30, 2013) (finding the 18 “seemingly exorbitant de facto hourly rate of just under $800 per hour” reasonable and 19 “but a by-product of counsel’s efficiency in prosecuting the case”); Hearn v. Barnhart, 20 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (collecting cases from two decades ago that 21 approved fees between roughly $200 and $700 an hour); Palos v. Colvin, No. CV 15- 22 04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. 2016) (finding an effective hourly rate 23 of $1,546.39 reasonable for an attorney-fee award of $15,000 in a similar case). 24 When a valid attorney-client fee arrangement exists, the fee statute is not meant to 25 displace that agreement, but to act as a check on the reasonableness of fees. See Gisbrecht, 26 535 U.S. at 793. And in the time since Gisbrecht, “district courts generally have been 27 deferential to the terms of contingency fee contracts in § 406(b) cases, accepting that the 28 1 || resulting de facto hourly rates may exceed those for non[-]contingency-fee arrangements.” 2 || Hearn, 262 F. Supp. 2d at 1037. 3 The Court sees no ground for penalizing plaintiff's counsel for his efficiency here. 4 ||Counsel’s unopposed request for fees under 42 U.S.C. § 406(b) is GRANTED. Counsel is 5 |/entitled to $16,102.00 out of plaintiff's past-due benefits. Counsel must reimburse plaintiff 6 || the $3,600.00 EAJA fees already paid. (See ECF 23); see also Gisbrecht, 535 U.S. at 796 7 || (noting that, when section 406(b) fees are awarded, “the claimant’s attorney must refund 8 || to the claimant the amount of the smaller [EAJA] fee’’). 9 Dated: September 13, 2023 10 = | f il Andrew G. Schopler United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28