1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAURA L. NESS, Case No. 2:20-cv-00309-JDP (SS) 12 Plaintiff, ORDER 13 v. GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES UNDER THE EQUAL 14 MARTIN O’MALLEY, ACCESS TO JUSTICE ACT AND Commissioner of Social Security, GRANTING PLAINTIFF’S COUNSEL’S 15 MOTION FOR ATTORNEY FEES UNDER 42 Defendant. U.S.C. § 406(b) 16 ECF Nos. 26 & 28 17
18 19 Plaintiff prevailed in this action after the court granted her motion for summary judgment 20 and remanded the case for payment of benefits. See ECF Nos. 24 & 25. The Social Security 21 Administration (“SSA”) subsequently awarded her $153,537.00 in past-due benefits. See ECF 22 No. 28-2. On October 2, 2023, plaintiff filed a motion for attorney fees and costs under the Equal 23 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1). ECF No. 26. That same day, plaintiff’s 24 counsel filed a motion seeking $38,384.25 in attorney fees under 42 U.S.C. § 406(b), subject to a 25 credit to plaintiff for any amount awarded under the EAJA. ECF No. 28. Both motions are 26 before the court. 27 28 1 A. Plaintiff’s Motion for EAJA Fees 2 The EAJA provides that a prevailing party other than the United States shall be awarded 3 fees and other expenses incurred by that party in any civil action brought by or against the United 4 States, “unless the court finds that the position of the United States was substantially justified or 5 that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In determining 6 whether a fee is reasonable, the court considers the hours expended, the reasonable hourly rate, 7 and the results obtained. See Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990); Hensley v. 8 Eckerhart, 461 U.S. 424, 433 (1983); Atkins v. Apfel, 154 F.3d 986, 987-88 (9th Cir. 1998). 9 “[E]xcessive, redundant, or otherwise unnecessary” hours should be excluded from a fee award, 10 and charges that are not properly billable to a client are not properly billable to the government. 11 Hensley, 461 U.S. at 434. 12 Plaintiff seeks $10,660.77 in EAJA fees for 48.87 hours of attorney work performed 13 during 2019 to 2023, plus costs, based on the following breakdown: .55 hours during 2019 at the 14 statutory-maximum hourly rate of $205.25; 42.08 hours during 2020 at the statutory-maximum 15 hourly rate of $207.78; 5.05 hours during 2021 at the statutory-maximum hourly rate of $217.54; 16 .67 hours during 2022 at the statutory-maximum hourly rate of $234.95; .52 hours during 2023 at 17 the statutory-maximum hourly rate of $244.62; and costs for postage and filing fees in the amount 18 of $421.30.1 See ECF No. 26; ECF No. 28-3. 19 Plaintiff was the prevailing party in this action and has assigned the right to receive EAJA 20 fees to counsel. See ECF No. 24; ECF No. 27-1. The government has not filed an opposition to 21 plaintiff’s motion requesting EAJA fees and therefore has not demonstrated that its position was 22 substantially justified.2 See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (the 23 1 The court has slightly adjusted plaintiff’s requested award from $10,659.84 to 24 $10,660.77 in accordance with the Ninth Circuit’s list of the statutory-maximum hourly rates authorized by the EAJA. In particular, the current rate for 2023 is $244.62, and not $242.78 as 25 reflected in counsel’s billing records. See Statutory Maximum Rates Under the Equal Access to Justice Act, Ninth Circuit website, https://www.ca9.uscourts.gov/attorneys/statutory-maximum- 26 rates/ (last visited March April 8, 2023); ECF No. 27-2. 27 2 The court notes that after plaintiff moved for summary judgment, defendant agreed that remand was warranted, although requested that the court order remand for further proceedings 28 rather than an award of benefits. See ECF No. 20. 1 burden of establishing substantial justification is on the government). The court has 2 independently reviewed the record and finds that both the hourly rate and hours expended are 3 reasonable considering the complexity of the case and the result obtained. 4 B. Counsel’s Motion for Fees under 42 U.S.C. § 406(b) 5 An attorney is entitled to reasonable fees for successfully representing social security 6 claimants in district court. 7 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an 8 attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent 9 of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 10 11 42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under Section 406(b) 12 are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 F.3d 1142, 13 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The 14 twenty-five percent statutory maximum fee is not an automatic entitlement; the court must ensure 15 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold that § 406(b) does 16 not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs 17 courts to review for reasonableness fees yielded by those agreements.”). In assessing whether a 18 fee is reasonable, the court should consider “the character of the representation and the results the 19 representative achieved.” Id. at 808. A “court may properly reduce the fee for substandard 20 performance, delay, or benefits that are not in proportion to the time spent on the case.” 21 Crawford, 586 F.3d at 1151. 22 The Supreme Court in Gisbrecht explained that “Congress harmonized fees payable by 23 the Government under EAJA with fees payable under § 406(b) out of the claimant’s past-due 24 Social Security benefits in this manner: Fee awards may be made under both prescriptions, but 25 the claimant’s attorney must refun[d] to the claimant the amount of the smaller fee.” 535 U.S. at 26 796 (internal quotation marks and citation omitted). “[A]n EAJA award offsets an award under 27 Section 406(b), so that the [amount of the total past-due benefits the claimant actually receives] 28 will be increased by the . . . EAJA award up to the point the claimant receives 100 percent of the 1 past-due benefits.” Id. (internal quotation marks and citation omitted). 2 Plaintiff entered a contingent fee agreement that provided that she would pay counsel 3 twenty-five percent of any past-due benefits. See ECF No. 28-1 at 1-2. Plaintiff’s counsel 4 requests $38,384.25, which constitutes twenty-five percent of plaintiff’s retroactive benefits, 5 subject to a mandatory reimbursement to plaintiff for any award of EAJA fees. See ECF No. 28; 6 ECF No. 28-2 at 2. 7 The court has considered the character of counsel’s representation and the successful 8 outcome.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAURA L. NESS, Case No. 2:20-cv-00309-JDP (SS) 12 Plaintiff, ORDER 13 v. GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES UNDER THE EQUAL 14 MARTIN O’MALLEY, ACCESS TO JUSTICE ACT AND Commissioner of Social Security, GRANTING PLAINTIFF’S COUNSEL’S 15 MOTION FOR ATTORNEY FEES UNDER 42 Defendant. U.S.C. § 406(b) 16 ECF Nos. 26 & 28 17
18 19 Plaintiff prevailed in this action after the court granted her motion for summary judgment 20 and remanded the case for payment of benefits. See ECF Nos. 24 & 25. The Social Security 21 Administration (“SSA”) subsequently awarded her $153,537.00 in past-due benefits. See ECF 22 No. 28-2. On October 2, 2023, plaintiff filed a motion for attorney fees and costs under the Equal 23 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1). ECF No. 26. That same day, plaintiff’s 24 counsel filed a motion seeking $38,384.25 in attorney fees under 42 U.S.C. § 406(b), subject to a 25 credit to plaintiff for any amount awarded under the EAJA. ECF No. 28. Both motions are 26 before the court. 27 28 1 A. Plaintiff’s Motion for EAJA Fees 2 The EAJA provides that a prevailing party other than the United States shall be awarded 3 fees and other expenses incurred by that party in any civil action brought by or against the United 4 States, “unless the court finds that the position of the United States was substantially justified or 5 that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In determining 6 whether a fee is reasonable, the court considers the hours expended, the reasonable hourly rate, 7 and the results obtained. See Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990); Hensley v. 8 Eckerhart, 461 U.S. 424, 433 (1983); Atkins v. Apfel, 154 F.3d 986, 987-88 (9th Cir. 1998). 9 “[E]xcessive, redundant, or otherwise unnecessary” hours should be excluded from a fee award, 10 and charges that are not properly billable to a client are not properly billable to the government. 11 Hensley, 461 U.S. at 434. 12 Plaintiff seeks $10,660.77 in EAJA fees for 48.87 hours of attorney work performed 13 during 2019 to 2023, plus costs, based on the following breakdown: .55 hours during 2019 at the 14 statutory-maximum hourly rate of $205.25; 42.08 hours during 2020 at the statutory-maximum 15 hourly rate of $207.78; 5.05 hours during 2021 at the statutory-maximum hourly rate of $217.54; 16 .67 hours during 2022 at the statutory-maximum hourly rate of $234.95; .52 hours during 2023 at 17 the statutory-maximum hourly rate of $244.62; and costs for postage and filing fees in the amount 18 of $421.30.1 See ECF No. 26; ECF No. 28-3. 19 Plaintiff was the prevailing party in this action and has assigned the right to receive EAJA 20 fees to counsel. See ECF No. 24; ECF No. 27-1. The government has not filed an opposition to 21 plaintiff’s motion requesting EAJA fees and therefore has not demonstrated that its position was 22 substantially justified.2 See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (the 23 1 The court has slightly adjusted plaintiff’s requested award from $10,659.84 to 24 $10,660.77 in accordance with the Ninth Circuit’s list of the statutory-maximum hourly rates authorized by the EAJA. In particular, the current rate for 2023 is $244.62, and not $242.78 as 25 reflected in counsel’s billing records. See Statutory Maximum Rates Under the Equal Access to Justice Act, Ninth Circuit website, https://www.ca9.uscourts.gov/attorneys/statutory-maximum- 26 rates/ (last visited March April 8, 2023); ECF No. 27-2. 27 2 The court notes that after plaintiff moved for summary judgment, defendant agreed that remand was warranted, although requested that the court order remand for further proceedings 28 rather than an award of benefits. See ECF No. 20. 1 burden of establishing substantial justification is on the government). The court has 2 independently reviewed the record and finds that both the hourly rate and hours expended are 3 reasonable considering the complexity of the case and the result obtained. 4 B. Counsel’s Motion for Fees under 42 U.S.C. § 406(b) 5 An attorney is entitled to reasonable fees for successfully representing social security 6 claimants in district court. 7 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an 8 attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent 9 of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 10 11 42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under Section 406(b) 12 are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 F.3d 1142, 13 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The 14 twenty-five percent statutory maximum fee is not an automatic entitlement; the court must ensure 15 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold that § 406(b) does 16 not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs 17 courts to review for reasonableness fees yielded by those agreements.”). In assessing whether a 18 fee is reasonable, the court should consider “the character of the representation and the results the 19 representative achieved.” Id. at 808. A “court may properly reduce the fee for substandard 20 performance, delay, or benefits that are not in proportion to the time spent on the case.” 21 Crawford, 586 F.3d at 1151. 22 The Supreme Court in Gisbrecht explained that “Congress harmonized fees payable by 23 the Government under EAJA with fees payable under § 406(b) out of the claimant’s past-due 24 Social Security benefits in this manner: Fee awards may be made under both prescriptions, but 25 the claimant’s attorney must refun[d] to the claimant the amount of the smaller fee.” 535 U.S. at 26 796 (internal quotation marks and citation omitted). “[A]n EAJA award offsets an award under 27 Section 406(b), so that the [amount of the total past-due benefits the claimant actually receives] 28 will be increased by the . . . EAJA award up to the point the claimant receives 100 percent of the 1 past-due benefits.” Id. (internal quotation marks and citation omitted). 2 Plaintiff entered a contingent fee agreement that provided that she would pay counsel 3 twenty-five percent of any past-due benefits. See ECF No. 28-1 at 1-2. Plaintiff’s counsel 4 requests $38,384.25, which constitutes twenty-five percent of plaintiff’s retroactive benefits, 5 subject to a mandatory reimbursement to plaintiff for any award of EAJA fees. See ECF No. 28; 6 ECF No. 28-2 at 2. 7 The court has considered the character of counsel’s representation and the successful 8 outcome. Counsel spent 48.87 hours litigating the case, which is supported by detailed billing 9 records. See ECF No. 28-3. Counsel’s request for $38,384.25 translates to an effective hourly 10 rate of approximately $785.44 for attorney services. There is no indication that counsel engaged 11 in dilatory conduct or performed in a substandard manner. As a result of counsel’s work, plaintiff 12 received a favorable decision and a significant award of past-due benefits. See ECF No. 24; ECF 13 No. 28-2. Given the result obtained, and the risk of loss that counsel assumed in representing 14 plaintiff, the court finds that the effective hourly rate is reasonable. See, e.g., Crawford, 586 F.3d 15 at 1153 (Clifton, J., concurring in part) (observing that majority opinion approved effective 16 hourly rates of $519, $875, and $902); Langston v. Saul, 2020 WL 4501941, at *3 (E.D. Cal. 17 Aug. 5, 2020) (approving effective hourly rate of $1,453.42); De Vivo v. Berryhill, 2018 WL 18 4262007 (E.D. Cal. Sept. 6, 2018) (approving effective hourly rate of $1,116.26). The court 19 calculates that plaintiff’s counsel is entitled to attorney fees under Section 406(b) in the amount of 20 $38,384.25, subject to reimbursement to plaintiff for EAJA fees that counsel receives.3 See Lee- 21 Klein v. Comm’r of Soc. Sec., 2024 WL 382532, at *5 (E.D. Cal. Feb. 1, 2024) (granting 22 concurrent motions for EAJA and § 406(b) fees, and ordering counsel to reimburse plaintiff for 23 EAJA award after receiving payment for § 406(b) fees). 24 Accordingly, it is hereby ORDERED that: 25 1. Plaintiff’s motion for fees and costs under the EAJA, ECF No. 26, is granted. 26 3 An offset for an EAJA award is warranted when counsel has already received the 27 payment. See Salinas v. Comm’r of Soc. Sec., 2022 WL 484905, at *4 (E.D. Cal. Feb. 16, 2022) (declining offset for prior EAJA award counsel never received because it was used to pay 28 claimant’s federal debt). 1 2. Plaintiff is awarded fees and costs under the EAJA in the amount of $10,660.77. 2 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), any EAJA payment shall be made 3 payable to plaintiff and delivered to plaintiff's counsel, unless plaintiff does not owe a 4 federal debt. If the United States Department of the Treasury determines that plaintiff 5 does not owe a federal debt, the government shall accept plaintiff's assignment of 6 EAJA fees and pay the EAJA award directly to plaintiff's counsel. 7 4. Plaintiffs counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b), ECF 8 No. 28, is granted. 9 5. Plaintiff's counsel is awarded attorney fees under 42 U.S.C. § 406(b) in the amount of 10 $38,384.25. 11 6. Upon counsel’s receipt of payment for fees under 42 U.S.C. § 406(b), counsel shall 12 reimburse to plaintiff the amount of the EAJA award paid to counsel. 13 4 IT IS SO ORDERED. 15 ( 1 Ow — Dated: _ April 10, 2024 q_———. 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE
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