(SS) Xiong v. Commissioner of Social Security

Opinion

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3

4 Ai Xiong, CASE NO. 1:21-cv-00134-GSA 5 Plaintiff, 6 ORDER GRANTING MOTION FOR ATTORNEY v. FEES PURSUANT TO 42 U.S.C. 406(b) 7 (Doc. 22) 8 Commissioner of Social Security, 9 Defendant. 10

11 Plaintiff’s counsel Jonathan O. Peña seeks an award of attorney fees pursuant to 42 U.S.C. § 12 406(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. 22-2. The agreement also provides that counsel 16 would seek fees pursuant to the Equal Access to Justice Act (EAJA), fees which would be refunded in 17 the event of an award of past due benefits and payment of the 25% contingency fee. Id. 18 Plaintiff filed a complaint in this Court on February 1, 2021, appealing the Commissioner’s 19 decision denying her application for benefits. Plaintiff filed her motion for summary judgment 20 (“opening brief”) on December 22, 2021. Doc. 16. Defendant responded on January 21, 2022. Doc. 17. 21 On June 13, 2022, Plaintiff’s motion was granted, judgment was entered for Plaintiff, and the matter was 22 remanded to the agency for further proceedings. Doc. 18–19. Counsel was awarded EAJA fees in an 23 amount of $7,600.00. Doc. 21. 24 On remand the agency determined that Plaintiff was disabled and entitled to past due benefits 25 (Doc. 22-1 at 1–2) from which the agency withheld 25% ($32,86743) for payment to counsel. Id. at 3. 26 27 1 II. Legal Standard 2 An attorney may seek an award of fees for representation of a Social Security claimant who is 3 awarded benefits: 4 Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine and 5 allow 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 6 such judgment . . . 7 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 8 controls fees awarded for representation of Social Security claimants). A contingency fee agreement is 9 unenforceable by the Court if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. 10 at 807 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they 11 provide for fees exceeding 25 percent of the past-due benefits.”). 12 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 13 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 14 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 15 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 16 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 17 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 18 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 19 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc); Vazquez v. Com'r of Soc. Sec., No. 20 1:17-CV-1646-JLT, 2020 WL 2793059, at *2 (E.D. Cal. May 29, 2020). 21 III. Analysis 22 Here, Plaintiff was represented by experienced counsel and achieved a favorable result, namely 23 an order of remand, entry of judgment, and ultimately a substantial award of past due benefits. There is 24 no indication that counsel engaged in dilatory conduct, excessive delay, or substandard performance. 25 Counsel’s itemized bill reflects 36.4 hours of time to review the administrative record and draft a 26 detailed opening brief, which is a reasonable time expenditure for the performance of those tasks. Doc. 27 22-3. 1 The effective hourly rate amounts to $902 per hour, which is significant but is within the upper 2 limit of reasonableness. See Malta v. Comm'r of Soc. Sec., No. 1:18-CV-00415-CDB, 2024 WL 3 3618430, at *3 (E.D. Cal. Aug. 1, 2024) (collecting cases and finding that “hourly rate of $1,553.87 is 4 within the upper boundaries of reasonableness.”); Coder v. Comm'r of Soc. Sec., No. 1:20-cv-00497- 5 CDB, 2024 WL 1742026, at *3 (E.D. Cal. Apr. 23, 2024) (reducing de facto hourly rate of $3,532.87 to 6 $1,500.00 per hour); Reyna v. Comm'r of Soc. Sec., No. 1:22-CV-00484-SAB, 2024 WL 4453046, at *2 7 (E.D. Cal. Oct. 9, 2024) (approving de facto hourly rate of $1,326.57 per hour); Langston v. Saul, No. 8 1:18-CV-00273-SKO, 2020 WL 4501941, at *3 (E.D. Cal. Aug. 5, 2020) ($1,453.42 per hour). 9 Although this is a substantial hourly rate, the fee award would not amount to a windfall. Unlike 10 fee motions governed entirely by the lodestar method, in contingency fee matters pursuant to section 11 406(b) the lodestar is merely a guidepost, and a comparatively high effective hourly rate is generally 12 warranted to compensate counsel for the risk assumed in representing social security claimants. See 13 Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). 14 The $32,867.43 total amount is also consistent with total contingent fee awards granted under 15 section 406(b). See, e.g., Ortega v. Comm'r of Soc. Sec., No. 1:12–cv–01030–AWI–SAB, 2015 WL 16 5021646, at *3 (E.D. Cal. Aug. 21, 2015) ($24,350); Thomas v. Colvin, No. 1:11–cv–01291–SKO, 2015 17 WL 1529331, at *3 (E.D. Cal. Apr. 3, 2015) ($44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS, 18 2013 WL 6712552, at *2 (E.D. Cal. Dec. 19, 2013) ($20,577.57); Jamieson v. Astrue, No. 1:09-cv- 19 00490-LJO-DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) ($34,500). 20 Considering the character of the representation, the result achieved, and the fee amounts awarded 21 in similar cases, the request here is reasonable. 22 Accordingly, it is ORDERED as follows: 23 1. Counsel’s motion for attorney fees pursuant to 42 U.S.C. 406(b) (Doc. 22) is granted. 24 2. The Commissioner shall certify a payment of a gross award in the amount of $32,867.43 25 to: Jonathan O. Peña. 26 3. Upon receipt of this sum, Jonathan O. Peña shall remit directly to Plaintiff Ai Xiong the 27 EAJA fees previously awarded in the amount of $7,600. 1 2 IT IS SO ORDERED.

3 Dated: February 13, 2025 /s/ Gary S. Austin 4 UNITED STATES MAGISTRATE JUDGE

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