1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ANA MARIA RUBIO, Case No.: 3:23-cv-00399-CSD
4 Plaintiff ORDER
5 v. Re: ECF No. 22
6 FRANK BISIGNANO, Commissioner of Social Security 7 Administration,
8 Defendant
9 10 Before the court is Plaintiff's counsel's Motion for Attorney's Fees Pursuant to 42 U.S.C. 11 § 406(b). (ECF No. 22.) Plaintiff did not file a response. The Commissioner filed a response 12 indicating he takes no position as to counsel’s motion. (ECF No. 23.) 13 I. BACKGROUND 14 Plaintiff, represented by counsel, sought and was granted in forma pauperis status and 15 filed her complaint requesting review of the final decision of Commissioner. (ECF Nos. 1, 1-1, 5, 16 6.) Plaintiff filed a motion for reversal and/or remand. (ECF No. 11.) The Commissioner filed a 17 response and cross-motion to affirm. (ECF Nos. 15, 16.) The undersigned granted Plaintiff's 18 motion; denied the Commissioner's cross-motion; and directed that the matter be remanded for 19 further proceedings before the Administrative Law Judge (ALJ). (ECF No. 18.) The court 20 entered judgment in Plaintiff’s favor. (ECF No. 19.) The parties stipulated, and the court ordered 21 an award of attorney's fees and expenses under the Equal Access to Justice Act (EAJA) in the 22 amount of $4,200. (ECF Nos. 20, 21.) On remand, the Commissioner awarded Plaintiff $80,533 23 in past due benefits. (See ECF No. 22 at 6; ECF No. 22-2; ECF No. 22-3.) 1 Plaintiff's representation was based on a contingency fee agreement. Plaintiff's counsel 2 filed this motion requesting an award of attorney's fees in the amount of $15,000 under 42 3 U.S.C. § 406(b), with the $4,200 award under the EAJA to be reimbursed to Plaintiff for the 4 EAJA fees previously paid. (ECF No. 22.)
5 II. LEGAL STANDARD 6 The court may award fees when it "renders a judgment favorable to a claimant … who 7 was represented before the court by an attorney … not in excess of 25 percent of the total of the 8 past-due benefits to which the claimant is entitled by reason of such judgment[.]" 9 42 U.S.C. § 406(b)(1). 10 "[A]n award under §406(b) compensates an attorney for all the attorney's work before a 11 federal court on behalf of the Social Security claimant in connection with the action that resulted 12 in past-due benefits." Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1220 (9th Cir. 13 2012). "The fee is payable 'out of, and not in addition to, the amount of past-due benefits' 14 awarded to the claimant." Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (citing §406(b)(1)).
15 "§ 406(b) does not displace contingent-fee agreements as the primary means by which fees are 16 set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) 17 calls for court review of such arrangements as an independent check, to assure that they yield 18 reasonable results in particular cases." Id. at 807. 19 In conducting the fee analysis, the court should begin with the contingent fee agreement 20 and determine if it is within the 25 percent cap, and then test it for reasonableness. Gisbrecht, 21 535 U.S. at 808. In other words, "the district court must first look to the fee agreement and then 22 adjust downward if the attorney provided substandard representation or delayed the case, or if 23 1 the requested fee would result in a windfall." Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2 2009) (citing Gisbrecht, 535 U.S. at 808). 3 Crawford has set forth factors that district courts should consider in determining the 4 reasonableness of the fee, including: (1) the character of the representation (whether there was
5 substandard performance or delay attributable to the attorney requesting the fees); (2) the results 6 achieved; (3) whether the benefits of the representation were out of proportion with the time 7 spent on the case; and (4) the risk assumed by counsel in accepting the case. Id. at 151-52. "'[A]s 8 an aid to the court's assessment of the reasonableness of the fee yielded by the fee agreement,' 9 but 'not as a basis for satellite litigation,' the court may require counsel to provide a record of the 10 hours worked and counsel's regular hourly billing charge for noncontingent cases." Id. at 1148 11 (quoting Gisbrecht, 535 U.S. at 808). 12 The attorney bears the burden of establishing that the fee sought is reasonable. Id. at 13 1145, 1148 (citing Gisbrecht, 535 U.S. at 807). "Since Gisbrecht … district courts generally 14 have been deferential to the terms of contingency fee contracts in § 406(b) cases, accepting that
15 the resulting de facto hourly rates may exceed those for non-contingency-fee arrangements" 16 because "courts recognize that basing a reasonableness determination on a simple hourly rate is 17 inappropriate when an attorney is working pursuant to a reasonable contingency contract for 18 which there runs a substantial risk of loss." Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. 19 Cal. 2003). 20 Finally, when fees are awarded under the EAJA, and fees are also awarded under section 21 406(b) in the same court, the court must offset the EAJA award against the section 406(b) award. 22 Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin, 698 F.3d 1215, 1221 (9th Cir. 23 2012). 1 III. DISCUSSION 2 Here, the contingency agreement was for a fee of 25 percent of past due benefits awarded 3 if Plaintiff was successful, and $15,000 in fees is therefore within the 25 percent statutory cap. 4 (ECF No. 22-1.)
5 Next, the court will address the Crawford factors. First, there is no issue with the 6 character of the representation, i.e., nothing in the record suggests counsel's performance was 7 substandard. There is no delay or dilatory conduct attributable to Plaintiff's counsel. Second, 8 Plaintiff's counsel achieved a successful result—a remand for further proceedings. Third, the 9 benefits of representation are not out of proportion with the time spent on the case. 16.2 hours of 10 attorney time and 2.6 hours of paralegal/clerical time were spent on this case. The fee of $15,000 11 for 18.8 hours of work translates to an hourly rate of $797.87 ($15,000 ÷ 18.8 hours), or an 12 hourly rate of $574.47 after the EAJA fees in the amount of $4,200 are offset ($15,000 - $4,200 13 =$10,800 ÷ 18.8 hours). 14 Courts within this circuit have awarded fees under section 406(b) for similar rates and
15 rates exceeding this amount. See e.g. Crawford, 586 F.3d at 1153 (approving effective hourly 16 rates of $519, $875, and $902); Mandler v. Saul, No. 2:13-cv-01636-GMN-GWF, 2020 WL 17 7335662 (D. Nev. Dec. 14, 2020) (approving effective hourly rate of $995.03); Melendez Meza 18 v. Berryhill, No. EDCV 16-1286-KS, 2019 WL 1751833, at *3 (C.D. Cal. Feb. 25, 2019) ("The 19 Ninth Circuit has found reasonable fees with effective hourly rates exceeding $900, and the 20 Central District of California has repeatedly found reasonable fees with effective hourly rates 21 exceeding $1,000 per hour."); Rolleri v. Berryhill, 3:16-cv-HDM-WGC, 2019 WL 1646394 (D. 22 Nev.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ANA MARIA RUBIO, Case No.: 3:23-cv-00399-CSD
4 Plaintiff ORDER
5 v. Re: ECF No. 22
6 FRANK BISIGNANO, Commissioner of Social Security 7 Administration,
8 Defendant
9 10 Before the court is Plaintiff's counsel's Motion for Attorney's Fees Pursuant to 42 U.S.C. 11 § 406(b). (ECF No. 22.) Plaintiff did not file a response. The Commissioner filed a response 12 indicating he takes no position as to counsel’s motion. (ECF No. 23.) 13 I. BACKGROUND 14 Plaintiff, represented by counsel, sought and was granted in forma pauperis status and 15 filed her complaint requesting review of the final decision of Commissioner. (ECF Nos. 1, 1-1, 5, 16 6.) Plaintiff filed a motion for reversal and/or remand. (ECF No. 11.) The Commissioner filed a 17 response and cross-motion to affirm. (ECF Nos. 15, 16.) The undersigned granted Plaintiff's 18 motion; denied the Commissioner's cross-motion; and directed that the matter be remanded for 19 further proceedings before the Administrative Law Judge (ALJ). (ECF No. 18.) The court 20 entered judgment in Plaintiff’s favor. (ECF No. 19.) The parties stipulated, and the court ordered 21 an award of attorney's fees and expenses under the Equal Access to Justice Act (EAJA) in the 22 amount of $4,200. (ECF Nos. 20, 21.) On remand, the Commissioner awarded Plaintiff $80,533 23 in past due benefits. (See ECF No. 22 at 6; ECF No. 22-2; ECF No. 22-3.) 1 Plaintiff's representation was based on a contingency fee agreement. Plaintiff's counsel 2 filed this motion requesting an award of attorney's fees in the amount of $15,000 under 42 3 U.S.C. § 406(b), with the $4,200 award under the EAJA to be reimbursed to Plaintiff for the 4 EAJA fees previously paid. (ECF No. 22.)
5 II. LEGAL STANDARD 6 The court may award fees when it "renders a judgment favorable to a claimant … who 7 was represented before the court by an attorney … not in excess of 25 percent of the total of the 8 past-due benefits to which the claimant is entitled by reason of such judgment[.]" 9 42 U.S.C. § 406(b)(1). 10 "[A]n award under §406(b) compensates an attorney for all the attorney's work before a 11 federal court on behalf of the Social Security claimant in connection with the action that resulted 12 in past-due benefits." Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1220 (9th Cir. 13 2012). "The fee is payable 'out of, and not in addition to, the amount of past-due benefits' 14 awarded to the claimant." Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (citing §406(b)(1)).
15 "§ 406(b) does not displace contingent-fee agreements as the primary means by which fees are 16 set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) 17 calls for court review of such arrangements as an independent check, to assure that they yield 18 reasonable results in particular cases." Id. at 807. 19 In conducting the fee analysis, the court should begin with the contingent fee agreement 20 and determine if it is within the 25 percent cap, and then test it for reasonableness. Gisbrecht, 21 535 U.S. at 808. In other words, "the district court must first look to the fee agreement and then 22 adjust downward if the attorney provided substandard representation or delayed the case, or if 23 1 the requested fee would result in a windfall." Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2 2009) (citing Gisbrecht, 535 U.S. at 808). 3 Crawford has set forth factors that district courts should consider in determining the 4 reasonableness of the fee, including: (1) the character of the representation (whether there was
5 substandard performance or delay attributable to the attorney requesting the fees); (2) the results 6 achieved; (3) whether the benefits of the representation were out of proportion with the time 7 spent on the case; and (4) the risk assumed by counsel in accepting the case. Id. at 151-52. "'[A]s 8 an aid to the court's assessment of the reasonableness of the fee yielded by the fee agreement,' 9 but 'not as a basis for satellite litigation,' the court may require counsel to provide a record of the 10 hours worked and counsel's regular hourly billing charge for noncontingent cases." Id. at 1148 11 (quoting Gisbrecht, 535 U.S. at 808). 12 The attorney bears the burden of establishing that the fee sought is reasonable. Id. at 13 1145, 1148 (citing Gisbrecht, 535 U.S. at 807). "Since Gisbrecht … district courts generally 14 have been deferential to the terms of contingency fee contracts in § 406(b) cases, accepting that
15 the resulting de facto hourly rates may exceed those for non-contingency-fee arrangements" 16 because "courts recognize that basing a reasonableness determination on a simple hourly rate is 17 inappropriate when an attorney is working pursuant to a reasonable contingency contract for 18 which there runs a substantial risk of loss." Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. 19 Cal. 2003). 20 Finally, when fees are awarded under the EAJA, and fees are also awarded under section 21 406(b) in the same court, the court must offset the EAJA award against the section 406(b) award. 22 Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin, 698 F.3d 1215, 1221 (9th Cir. 23 2012). 1 III. DISCUSSION 2 Here, the contingency agreement was for a fee of 25 percent of past due benefits awarded 3 if Plaintiff was successful, and $15,000 in fees is therefore within the 25 percent statutory cap. 4 (ECF No. 22-1.)
5 Next, the court will address the Crawford factors. First, there is no issue with the 6 character of the representation, i.e., nothing in the record suggests counsel's performance was 7 substandard. There is no delay or dilatory conduct attributable to Plaintiff's counsel. Second, 8 Plaintiff's counsel achieved a successful result—a remand for further proceedings. Third, the 9 benefits of representation are not out of proportion with the time spent on the case. 16.2 hours of 10 attorney time and 2.6 hours of paralegal/clerical time were spent on this case. The fee of $15,000 11 for 18.8 hours of work translates to an hourly rate of $797.87 ($15,000 ÷ 18.8 hours), or an 12 hourly rate of $574.47 after the EAJA fees in the amount of $4,200 are offset ($15,000 - $4,200 13 =$10,800 ÷ 18.8 hours). 14 Courts within this circuit have awarded fees under section 406(b) for similar rates and
15 rates exceeding this amount. See e.g. Crawford, 586 F.3d at 1153 (approving effective hourly 16 rates of $519, $875, and $902); Mandler v. Saul, No. 2:13-cv-01636-GMN-GWF, 2020 WL 17 7335662 (D. Nev. Dec. 14, 2020) (approving effective hourly rate of $995.03); Melendez Meza 18 v. Berryhill, No. EDCV 16-1286-KS, 2019 WL 1751833, at *3 (C.D. Cal. Feb. 25, 2019) ("The 19 Ninth Circuit has found reasonable fees with effective hourly rates exceeding $900, and the 20 Central District of California has repeatedly found reasonable fees with effective hourly rates 21 exceeding $1,000 per hour."); Rolleri v. Berryhill, 3:16-cv-HDM-WGC, 2019 WL 1646394 (D. 22 Nev. April 16, 2019) (approving hourly rate of $923.91, and $788.04 with EAJA offset); 23 McCullough v. Berryhill, Case No. 16-cv-00625-BLF, 2018 WL 6002324 (N.D. Cal. Nov. 15, 2018) (approving effective hourly rate of $874.72); Harrell v. Berryhill, Case No. 16-cv-02428- 2|| TSH, 2018 WL 4646735, at *4 (N.D. Cal. Sept. 24, 2018) (approving effective hourly rate of 3} $1,213); Lopez v. Colvin, Case No. 6:14-cv-1910-SI, 2017 WL 168060, at *2 (N.D. Cal. Jan. 17, 2017) (approving effective hourly rate of $1,131); Palos v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (approving effective hourly rate of $1,546.39). 6 Counsel has submitted billing records in support of the requested fee that the court has 7\\ reviewed and finds the work performed to be reasonable. Finally, counsel, as in most Social 8|| Security cases, assumed a risk of going uncompensated in accepting the case and the time before past due benefits were awarded, if any, could be quite lengthy within both the courts and the 10|| Social Security Administration. 11 The amount of fees sought is within the 25 percent statutory cap, the plaintiff filed no 12]| objection to the request and counsel achieved an excellent result for his client. 13 Applying Gisbrecht and Crawford, the court concludes that the fees requested are reasonable and should be awarded under section 406(b) in the amount of $15,000 with an order Plaintiff be reimbursed by counsel in the amount of $4,200 for the fees already awarded 16]| under the EAJA. 17 IV. CONCLUSION 18 The motion for attorney's fees under § 406(b) (ECF No. 22) is GRANTED. Plaintiff's counsel is awarded $15,000 in fees, and Plaintiff's counsel shall refund to Plaintiff the amount of 20|| $4,200 for the fees awarded under the EAJA. IT IS SO ORDERED. Dated: September 17, 2025 22 Cc SS C y Craig S. Denney 23 United States Magisffrate Judge