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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 GERARDO JARAMILLO, Case No. 1:17-cv-00064-SAB

12 Plaintiff, ORDER GRANTING PETITIONER’S

UNOPPOSED MOTION FOR ATTORNEY

13 v. FEES PURSUANT TO 42 U.S.C. § 406(b)

14 COMMISSIONER OF SOCIAL (ECF No. 27)

SECURITY,

15 Defendant. 16 17 18 Petitioner Melissa Newel (“Counsel” or “Petitioner”), attorney for Gerardo Jaramillo 19 (“Plaintiff”), filed the instant motion for attorney fees on August 7, 2020. (Mot. Att’y Fees 20 (“Mot.”), ECF No. 27.) Counsel requests fees in the net amount of $25,514.75 pursuant to 42 21 U.S.C. § 406(b)(1), with an offset of $4,800.00 for fees previously awarded under the Equal 22 Access to Justice Act. Plaintiff was served with the motion and advised that any opposition to 23 the motion was to be filed within fourteen days. (ECF Nos. 28, 29.) Plaintiff did not file an 24 opposition to the request. On March 10, 2020, the Commissioner of Social Security 25 (“Defendant”), filed a statement of non-opposition, specifying the filing was made in a role 26 resembling that of trustee for Plaintiff. (Def.’s Statement Non-Opp’n Pl.’s Mot. Att’y Fees 27 (“Non-Opp’n”), ECF No. 30.) For the reasons discussed herein, Petitioner’s unopposed motion for attorney fees shall be granted. 1 I. 2 BACKGROUND 3 On January 13, 2017, Plaintiff filed this action challenging the denial of social security 4 benefits. (ECF No. 1.) Following a failed attempt to resolve the matter informally with a timely 5 filed four (4) page confidential letter brief dated August 9, 2017, Plaintiff’s counsel filed a 6 twenty-five (25) page opening brief. (Mot. 3; ECF Nos. 13, 15.) Following two extensions of 7 time to file Defendant’s opposition brief, Plaintiff’s counsel subsequently filed a timely nine (9) 8 page reply brief on January 16, 2018. (Mot. 3; ECF Nos. 17, 20, 21.) On February 14, 2018, the 9 Court granted in part Plaintiff’s social security appeal, remanded the case for further 10 development of the record, and entered judgment in favor of Plaintiff. (ECF Nos. 23, 24.) 11 Plaintiff’s counsel spent 26.40 hours litigating Plaintiff’s appeal. (Mot. 3; Decl. Melissa Newel 12 (“Newel Decl.”) ¶ 4, ECF No. 27 at 5.) On May 16, 2018, based on the stipulation of the parties, 13 Plaintiff’s counsel was awarded attorney fees in the amount of $4,800.00 pursuant to the Equal 14 Access to Justice Act. (Mot. 3; ECF No. 26.) 15 Following remand, the Defendant granted Plaintiff’s application for benefits, and on June 16 28, 2020, the Defendant issued a letter stating Plaintiff was entitled to receive $102,059.00 in 17 retroactive benefits. (Mot. 3; Newel Decl. ¶ 5, Ex. 3, ECF No. 27-3.) The Commissioner 18 withheld $25,514.75 from the past-due benefit for attorney fees. (Id.)1 This amount equals 19 twenty-five percent (25%) of the retroactive benefit award. (Id.) In the instant motion, 20 Petitioner seeks an order awarding attorney fees in the amount of $25,514.75, and further 21 ordering Petitioner to reimburse Plaintiff in the amount of $4,800. (Mot. 5.) Thus, the total 22 attorney fee award, following reimbursement to Plaintiff, would be $25,514.75, or twenty-five 23 percent (25%) of the total $102,059.00 in retroactive benefits awarded. 24 /// 25 /// 26

27 1 Plaintiff’s motion incorrectly refers to the amount of $24,514.75 in this portion of the motion (Mot. 3), however the correct amount is $25,514.75, as indicated on the notice and elsewhere in the moving papers (Mot. 5; ECF Nos. 1 II. 2 LEGAL STANDARD 3 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 4 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 5 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 6 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 7 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 8 The Supreme Court has explained that a district court reviews a petition for section 9 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 10 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 11 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 12 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 13 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting 14 Gisbrecht, 535 U.S. at 793). The twenty-five percent maximum fee is not an automatic 15 entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 16 U.S. at 808–09 (“§ 406(b) does not displace contingent-fee agreements within the statutory 17 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 18 agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits 19 awarded are not enforceable. Gisbrecht, 535 U.S. at 807. The attorney has the burden of 20 demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 807 n.17; Crawford, 21 586 F.3d at 1148. 22 While the Supreme Court in Gisbrecht did not expressly “provide a definitive list of 23 factors that should be considered in determining whether a fee is reasonable or how those factors 24 should be weighed, the Court directed the lower courts to consider the ‘character of the 25 representation and the results the representative achieved.’ ” Crawford, 586 F.3d at 1151 26 (quoting Gisbrecht, 535 U.S. at 808). The Ninth Circuit has stated a court may weigh the 27 following factors under Gisbrecht in determining whether the fee was reasonable: (1) the 1 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 2 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 3 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 4 F.3d at 1151-52. 5 Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted 6 under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 7 1215, 1219 (9th Cir. 2012) (noting “the EAJA savings provision requires an attorney who 8 receives a fee award under § 2412(d) of the EAJA in addition to a fee award under § 406(b) for 9 the ‘same work’ to refund to the Social Security claimant the smaller award.”). 10 III. 11 DISCUSSION 12 The Court has conducted an independent check to insure the reasonableness of the 13 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 14 between Plaintiff and Petitioner provides that: “If Attorney is successful in vacating or 15 remanding the adverse agency decision in whole or part, Client agrees to pay a fee equal to 16 twenty five percent (25%) of the total amount of any past-due benefits awarded to Client . . . 17 subject to the approval of the Court. It is understood that this contingent fee is to be withheld 18 from past-due benefits awarded . . . and paid directly to the Attorney . . . Any amount received 19 by Attorney under the Equal Access to Justice Act will offset fees otherwise owed.” (Newel 20 Decl. ¶ 3; Attorney/Client Contingent Fee Agreement (“Agreement”), ECF No. 27-1 at 1.) 21 Plaintiff has been awarded retroactive benefits in the amount of $102,059.00. (Mot. 3; Newel 22 Decl. ¶ 5, Ex. 3.) 23 Consideration of the factors set forth in Gisbrecht and Crawford warrants no reduction of 24 the fee Petitioner seeks. There is no indication that a reduction of fees is warranted for 25 substandard performance. Counsel is an experienced, competent attorney who secured a 26 successful result for Plaintiff. (Newl Decl. ¶¶ 2-3.) Specifically, Counsel was admitted to 27 practice in 1990, and has specialized in Social Security disability appeals in federal court for 1 responsible for any delay in the court proceedings, with no extensions of time requested for 2 briefing by Plaintiff’s counsel, while stipulating to two extensions for briefing for Defendant. 3 (Mot. 4; ECF Nos. 17, 20.) 4 Plaintiff agreed to a twenty-five percent (25%) fee at the outset of the representation, and 5 in reflecting the standard withholding by the Agency, the Court finds the fee is not excessively 6 large in relation to the retroactive award of $102,059.00. In making this determination, the Court 7 recognizes the contingent nature of this case and the risk that counsel took of going 8 uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). 9 In support of the motion, Petitioner submitted a log of the time spent in prosecuting this 10 action. (Newel Decl. ¶ 4, Ex. 2, ECF No. 27-2.) The log demonstrates that Petitioner spent 11 26.40 hours on this action. (Id.)2 Therefore, Petitioner is seeking $25,514.75 for 26.40 hours of 12 attorney time. When considering the total amount requested by Petitioner, the fee request 13 translates to approximately $966.48 per hour for the services provided in this action. 14 In Crawford the Ninth Circuit found that fees of $519, $875, and $902 per hour, for time 15 of both attorneys and paralegals, was not excessive. Crawford, 486 F.3d at 1153 (Clifton, J., 16 concurring in part). Further, since Gisbrecht, courts note that reducing a fee request should not 17 be routinely done and find fee awards of an effective hourly rate much higher than this to be 18 reasonable. Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695, at *2 (C.D. Cal. 19 Nov. 13, 2018) (awarding fee request that provides an effective hourly rate of $1,553.36 per 20 hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502, at *3 (C.D. Cal. June 21, 21 2018) (effective hourly rate of $1,431.94 reasonable under the circumstances); Palos v. Colvin, 22 No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (fees sought 23 translate to $1,546.39 per hour for attorney and paralegal services); see also Villa v. Astrue, No. 24 CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. Cal. Jan. 7, 2010) (“In practice, the 25 more efficient counsel is in court, the higher will be the hourly fee amount represented in a § 406 26 fee award.”). 27 2 While Plaintiff’s timesheet incorrectly includes a signature page from May 2018 (ECF No. 27-2), the Court wOAOe 4.4 FOU □□□ SEAN MMU OPO ee AY OV VI

1 The Court finds that the requested fees are reasonable when compared to the amount of 2 | work Petitioner performed in representing Plaintiff. Petitioner’s representation of the claimant 3 | resulted in the action being remanded for further proceedings and ultimately, substantial benefits 4 | were awarded. 5 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 6 | under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, Petitioner has 7 | previously been awarded $4,800.00 in EAJA fees and the award of fees under Section 406(b) 8 | shall be offset in that amount. 9 IV. 10 CONCLUSION AND ORDER 11 For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to 12 | Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 13 1. Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the 14 amount of $25,514.75 is GRANTED; 15 2. The Court authorized payment to Petitioner Melissa Newel in the amount of 16 $25,514.75 representing attorney fees being withheld from Plaintiff's past due 17 disability benefits; and 18 3. Upon receipt of this sum, Petitioner shall remit $4,800.00 directly to Plaintiff as 19 an offset for EAJA fees previously awarded pursuant to 298 U.S.C. § 2412. 20 IT IS SO ORDERED. OF. nf ee 22 | Dated: September 1, 2020_ Of 33 UNITED STATES MAGISTRATE JUDGE

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