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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 KATHARINA KELTON, Case No. 1:21-cv-00917-SAB

12 Plaintiff, ORDER GRANTING PETITIONER’S

MOTION FOR ATTORNEY FEES

13 v. PURSUANT TO 42 U.S.C. § 406(b)

14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 18, 19, 20) 15 Defendant.

16 17 Petitioner Francesco P. Benavides (“Counsel”), attorney for Katharina Kelton 18 (“Plaintiff”), filed the instant motion for attorney fees on October 31, 2024. Counsel requests 19 fees in the amount of $12,600.00 pursuant to 42 U.S.C. § 406(b)(1). Plaintiff has not objected to 20 the request and the time to do so has passed. On November 4, 2024, Defendant Social Security 21 Commissioner, as a de facto trustee for Plaintiff, filed a response to Petitioner’s motion 22 providing an analysis of the fee request. 23 I. 24 BACKGROUND 25 Plaintiff filed the instant complaint challenging the denial of social security benefits on 26 June 10, 2021. (ECF No. 1.) On April 22, 2022, a stipulation for voluntary remand was filed. 27 (ECF No. 13.) The Court entered judgment in Plaintiff’s favor and the action was remanded on April 25, 2022. (ECF Nos. 14, 15.) On May 5, 2022, Plaintiff was awarded attorney fees of 1 $5,400.00 at the stipulation of the parties. (ECF Nos. 16, 17.) 2 On remand, the ALJ found that Plaintiff was disabled as of June 30, 2016, and Plaintiff 3 was awarded benefits in the amount of $79,527.70. (ECF No. 19-1 at 4; 19-3 at 7.) The 4 Commissioner withheld $19,881.93 from the past-due benefit for attorney fees. (ECF No. 19-1 5 at 5.) This amount equals 25 percent of the retroactive benefit award. Petitioner has previously 6 received payment of $5,400.00 in EAJA fees. (ECF No. 17.) In the instant motion, Petitioner 7 seeks $12,600.00 for work performed in this action. The attorney who represented Plaintiff at 8 the administrative level will be receiving $7,200.00 in attorney fees. (ECF No. 18 at 1; ECF No. 9 19-1 at 4.) 10 II. 11 LEGAL STANDARD 12 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 13 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 14 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 15 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 16 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 17 The Supreme Court has explained that a district court reviews a petition for section 18 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 19 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 20 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 21 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 22 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty- 23 five percent maximum fee is not an automatic entitlement, and courts are required to ensure that 24 the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (“§ 406(b) does not displace 25 contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to 26 review for reasonableness fees yielded by those agreements”). Agreements seeking fees in 27 excess of twenty-five percent of the past-due benefits awarded are not enforceable. Crawford, 1 reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148. 2 In determining the reasonableness of an award, the district court should consider the 3 character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, 4 an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA. 5 Gisbrecht, 535 U.S. at 796. 6 The Ninth Circuit has identified several factors that a district court can examine under 7 Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met 8 his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the 9 standard of performance of the attorney in representing the claimant; (2) whether the attorney 10 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 11 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 12 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 13 F.3d at 1151. 14 III. 15 DISCUSSION 16 The Court has conducted an independent check to insure the reasonableness of the 17 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 18 between Plaintiff and Petitioner provides for a fee “25% of the Claimant’s past due benefits 19 awarded to Claimant upon reversal of any unfavorable ALJ decision.” (Engagement and Fee 20 Agreement, ECF No. 19-3.) Plaintiff has been awarded benefits from March 2018 through 21 September 2024 in the amount of $79,527.70. (ECF No. 19-1 at 4.) In determining the 22 reasonableness of the fees requested, the Court is to apply the test mandated by Gisbrecht. 23 There is no indication that a reduction of fees is warranted for substandard performance. 24 Counsel is an experienced, competent attorney who secured a successful result for Plaintiff. 25 Although this action does involve six years of backpay, there is no indication that Counsel was 26 responsible for any substantial delay in the court proceedings. Plaintiff agreed to a 25 percent 27 fee at the outset of the representation and Petitioner is seeking payment of $12,600.00. 1 which is slightly over 9 percent of the backpay award.1 The $7,200.00 fee is not excessively 2 large in relation to the past-due award of $79,527.70. In making this determination, the Court 3 recognizes the contingent nature of this case and Counsel’s assumption of the risk of going 4 uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). 5 In support of the motion, Petitioner submits a log of the time spent in prosecuting this 6 action. (Time Sheet, ECF No. 19-4.) The time sheet demonstrates that Petitioner spent 25.2 7 hours on this action. (Id.) When considering the total amount requested by Petitioner, the fee 8 request translates to $500 per hour for Petitioner’s services in this action. In Crawford, the 9 appellate court found that a fee of $875 and $902 per hour, for time of both attorneys and 10 paralegals, was not excessive. Crawford, 486 F.3d at 1152 (dissenting opinion). Further, since 11 Gisbrecht, courts note that reducing a fee request is dicey business and find fee awards much 12 higher than this to be reasonable. Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 13 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an hourly rate of 14 $1,553.36 per hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502, at *3 (C.D. 15 Cal. June 21, 2018) (effective hourly rate of $1,431.94 reasonable under the circumstances); 16 Palos v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) 17 (fees sought translate to $1,546.39 per hour for attorney and paralegal services); see also Villa v. 18 Astrue, No. CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. Cal. Jan. 7, 2010) (“In 19 practice, the more efficient counsel is in court, the higher will be the hourly fee amount 20 represented in a § 406 fee award.”) 21 The Court finds that the requested fees are reasonable when compared to the amount of 22 work Petitioner performed in representing Plaintiff in court. Petitioner’s representation of the 23 claimant resulted in the action being remanded for further proceedings and ultimately benefits 24 were awarded. Petitioner also submitted a detailed billing statement which supports the request. 25 (ECF No. 19-4.) 26 The award of Section 406(b) fees is offset by any prior award of attorney fees granted

27 1 Considering the $7,200.00 that the attorney who represented Plaintiff at the administrative level is receiving, the total fee award to both Petitioner and the administrative level attorney is $14,400.00 which is approximately 18.1% 1 | under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, Petitioner has 2 | previously been awarded $5,400.00 in EAJA fees and the award of fees under Section 406(b) 3 | must be offset in that amount. 4 VI. 5 CONCLUSION AND ORDER 6 For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to 7 | Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the 9 amount of $12,600.00 is GRANTED; 10 2. Pursuant to counsel’s request, this amount shall be paid directly to The Law 11 Offices of Francisco Benavides, 1990 N. California Blvd., 8th Floor, Walnut 12 Creek, CA 94596. The Commissioner is to remit to Plaintiff the remainder of his 13 withheld benefits; and 14 3, Petitioner is ordered to refund $5,400.00 of the Section 406(b) fees awarded to 15 Plaintiff as an offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 16 2412(d). 17 18 IT IS SO ORDERED. DAM Le 19 | Dated: _November 19, 2024 _ oO ES

STANLEY A. BOONE

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