Whittle v. Saul

• Court: District Court, S.D. California
• Decided: June 7, 2024
• Docket: 3:20-cv-01452
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAWN W., Case No.: 20-cv-1452-DEB

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. COUNSEL’S MOTION FOR ATTORNEY FEES PURSUANT TO 14 MARTIN O’MALLEY, Acting 42 U.S.C. § 406(b) Commissioner of Social Security,1 15 Defendant. 16 [DKT. NO. 32] 17 18 Before the Court is Plaintiff’s Counsel’s Motion for Attorney Fees Pursuant to 42 19 U.S.C. § 406(b). Dkt. No. 32. Plaintiff does not oppose the Motion, and the Commissioner 20 takes no position. Dkt. No. 37.2 21 For the reasons discussed below, the Court GRANTS the Motion. 22 // 23 // 24 25 1 Martin O’Malley is substituted for Kilolo Kijakazi pursuant to Fed. R. Civ. P. 25(d). 26

27 2 In his response, the Commissioner asserts he “has no direct financial stake in the outcome of this motion” and “neither supports nor opposes counsel’s request for attorney’s fees.” 28 1 I. BACKGROUND 2 Plaintiff Dawn W. filed this case in 2020, seeking review of the Commissioner of 3 Social Security’s (“Commissioner”) denial of her application for disability insurance 4 benefits and Supplemental Security Income. Dkt. Nos. 1, 9.3 The Court reversed the denial 5 of benefits and remanded the case for further proceedings. Dkt. No. 28. Pursuant to the 6 parties’ joint motion, the Court awarded Plaintiff $8,750 in attorney fees under the Equal 7 Access for Justice Act (“EAJA”). Dkt. No. 31. 8 On remand, the Commissioner issued a decision favorable to Plaintiff and awarded 9 $111,286 in past-due disability benefits. Dkt. No. 32 at 2. The Commissioner withheld 10 $27,821.50 from the past-due benefits in the event Plaintiff’s counsel requested payment 11 of fees. Dkt. No. 32 at 10. 12 II. LEGAL STANDARD 13 Pursuant to the Social Security Act, attorneys may seek “a reasonable fee” for cases 14 in which they have successfully represented Social Security claimants. 42 U.S.C. 15 § 406(b)(1)(A). This fee cannot exceed “25 percent of the total of the past-due benefits to 16 which the claimant is entitled . . . .” Id.; see also Gisbrecht v. Barnhart, 535 U.S. 789, 807 17 (2002) (“Within the 25 percent [statutory] boundary . . ., the attorney for the successful 18 claimant must show that the fee sought is reasonable for the services rendered.”). 19 The Court “must ‘approach [§ 406(b)] fee determinations by looking first to the 20 contingent-fee agreement, then testing it for reasonableness.’” Crawford v. Astrue, 586 21 F.3d 1142, 1150 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at 808). In 22 evaluating the reasonableness of the fee award, the Court must consider “the character of 23 the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808 24 (citations omitted). The Court also “may properly reduce the fee for substandard 25 performance, delay, or benefits that are not in proportion to the time spent on the case.” 26 Crawford, 586 F.3d at 1151 (citation omitted). 27

28 1 Finally, the Court must offset the § 406(b) fee award by any fees granted under the 2 EAJA. See Gisbrecht, 535 U.S. at 796 (“Fee awards may be made under both prescriptions 3 [i.e., the EAJA and 42 U.S.C. § 406(b)], but the claimant’s attorney must ‘refun[d] to the 4 claimant the amount of the smaller fee.’”) (citation omitted). 5 III. DISCUSSION 6 Plaintiff’s counsel seeks $27,821 in attorney fees, offset by the $8,750 EAJA fees, 7 for a net award of $19,071. Dkt. No. 32 at 2, 4. The Court has conducted an independent 8 inquiry of the proposed fee award and finds it is reasonable and does not constitute a 9 windfall. 10 Plaintiff and counsel agreed to a contingent-fee agreement where counsel receives 11 25 percent of Plaintiff’s past-due benefits. Dkt. No. 32 at 4, 13–14.4 Counsel is requesting 12 attorney fees of $27,821, the maximum allowed under the contingency agreement and 42 13 U.S.C. § 406(b). Dkt. No. 32 at 4.5 Counsel’s representation resulted in Plaintiff receiving 14 a favorable decision and an award of past-due benefits. Counsel also “assumed significant 15 risk” in accepting this case, “including the risk that no benefits would be awarded or that 16 there would be a long court or administrative delay in resolving” the case. Crawford, 586 17 F.3d at 1152; see also Moreno v. Berryhill, No. 13-8492-PLA, 2018 WL 3490777, at *3 18 (C.D. Cal. July 19, 2018) (explaining the “risk of nonpayment inherent in a contingency 19 agreement”). 20 Finally, the Court does not find any reduction is warranted. See Crawford, 586 F.3d 21 at 1151 (“The court may properly reduce the fee for substandard performance, delay, or 22 benefits that are not in proportion to the time spent on the case.”) (citation omitted). There 23 24 25

26 4 The copy of the fee agreement submitted to the Court is signed by Plaintiff, but not 27 counsel. Dkt. No. 32 at 14.

28 ! no evidence of substandard performance or delay,° and the requested fees are “not 2 excessively large in relation to the benefits achieved” or the “time spent on the case.” Id. 3 Counsel expended 66.20 hours on this case. Dkt. No. 32 at 18-19. The $420.26 effective 4 hourly rate is reasonable. See Crawford, 586 F.3d at 1153 (finding reasonable effective 5 hourly rates of $519, $875, and $902). 6 IV. CONCLUSION 7 For the foregoing reasons, the Court GRANTS Plaintiff's Counsel’s Motion for Fees 8 || Pursuant to 42 U.S.C. § 406(b) in the amount of $27,821. Dkt. No. 32. 9 The Commissioner is DIRECTED to certify payment of a $27,821 fee award, made 10 payable to Gerrard Law Offices and delivered to Josephine M. Gerrard, out of Plaintiff’s V1 past-due benefits in accordance with agency policy. 12 The Court further ORDERS Plaintiff’s counsel to refund Plaintiff $8,750 to offset 13 |l the EAJA fees previously awarded. 14 IT IS SO ORDERED. 15 16 ||Dated: June 7, 2024 — ‘ Daud Tero Honorable Daniel E. Butcher 18 United States Magistrate Judge 19 20 21 22 23 24 25 %6 6 The parties requested (and received) (a) one 30-day extension for Plaintiff to file her opening brief because Covid created an increase in counsel’s workload (Dkt. Nos. 18, 19), 27 (b) one 45-day extension for Defendant to file a response based on counsel’s medical 28 leave and caseload (Dkt. Nos. 24, 25).