1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 DAMIEN M. AINSWORTH, Case No. 16-cv-03933-BLF

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. ATTORNEY'S FEES UNDER 42 U.S.C. § 406(B) 10 NANCY A. BERRYHILL, [Re: ECF 31] 11 Defendant.

12 13 In this Social Security appeal, the Court granted in part Plaintiff Damien M. Ainsworth’s 14 (“Ainsworth”) motion for summary judgment, remanded the case for further agency proceedings, 15 and entered judgment for Plaintiff. See Order, ECF 27; J., ECF 28. Based on the stipulation of 16 Ainsworth and the Social Security Commissioner, the Court granted $4,555.05 in attorney fees to 17 Ainsworth under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Joint Stipulation 18 & Order, ECF 30. On remand, Ainsworth was awarded past-due Disability Insurance Benefits in 19 the amount of $96,634.60. See Mem. of P. & A. 1–2 (“Mem.”), ECF 31-1. An additional 20 $31,679.00 was withheld toward payment of attorney’s fees. See id. at 2. 21 Ainsworth’s counsel (“Counsel”) has filed an application for an award of attorneys’ fees 22 pursuant to 42 U.S.C. § 406(b) and the parties’ contingent-fee agreement, which provides that 23 Ainsworth will pay attorneys’ fees in the maximum amount of 25% of past-due benefits awarded. 24 See id. Counsel specifically seeks a “gross fee” of $29,555.05, which would equate to a “net fee” 25 of $25,000.00 after he reimburses Ainsworth $4,555.05 for EAJA fees. Id. 26 The Court finds that the fees sought are reasonable and GRANTS the motion for attorneys’ 27 fees in the amount of $29,555.05. 1 I. LEGAL STANDARD 2 Section 406(b) of the Social Security Act governs Counsel’s request for fees. Under that 3 provision, “[w]henever a court renders a judgment favorable to a claimant under this subchapter 4 who was represented before the court by an attorney, the court may determine and allow as part of 5 its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the 6 past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U.S.C. 7 § 406(b)(1)(A). “A court may award such a fee even if the court’s judgment did not immediately 8 result in an award of past-due benefits; where the court has rendered a judgment favorable to a 9 claimant by reversing an earlier determination by an ALJ and remanding for further consideration, 10 the court may calculate the 25% fee based upon any past-due benefits awarded on remand.” Butler 11 v. Colvin, No. 3:14-CV-02050-LB, 2017 WL 446290, at *1 (N.D. Cal. Feb. 2, 2017). “[T]he fee is 12 paid by the claimant out of the past-due benefits awarded; the losing party is not responsible for 13 payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). 14 Attorneys specializing in social security work “routinely enter into contingent-fee 15 agreements specifying that the fee will be 25% of any past-due benefits recovered, thus providing 16 the attorney the statutory maximum of fees if the representation is successful.” Crawford, 586 17 F.3d at 1147. The Supreme Court has held that “§ 406(b) does not displace contingent-fee 18 agreements as the primary means by which fees are set for successfully representing Social 19 Security benefits claimants in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). However, 20 the district court must review contingent-fee agreements “as an independent check, to assure that 21 they yield reasonable results in particular cases.” Id. “[T]he district court must first look to the fee 22 agreement and then adjust downward if the attorney provided substandard representation or 23 delayed the case, or if the requested fee would result in a windfall.” Crawford, 586 F.3d at 1151. 24 Where attorneys’ fees have been awarded pursuant to the Equal Access to Justice Act 25 (“EAJA”), the EAJA fees must be offset against any fees awarded under § 406(b). Gisbrecht, 535 26 U.S. at 796 (citing 28 U.S.C. § 2412). “Under EAJA, a party prevailing against the United States 27 in court, including a successful Social Security benefits claimant, may be awarded fees payable by 1 Id. (quoting 28 U.S.C. § 2412). “Congress harmonized fees payable by the Government under 2 EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in 3 this manner: Fee awards may be made under both prescriptions, but the claimant’s attorney must 4 refund to the claimant the amount of the smaller fee.” Id. (internal quotation marks, citation, and 5 alterations omitted). 6 7 II. DISCUSSION 8 Pursuant to the standards set forth above, the Court begins its analysis by looking to the 9 contingent fee agreement between Counsel and Ainsworth. See Att’ys Fees Contract, ECF 31-4. 10 The agreement provides that, subject to approval of the federal court, Ainsworth will pay “a fee no 11 greater than 25% of the past-due benefits owed to [Ainsworth] (and [his] auxiliary beneficiaries, if 12 applicable.)” Id. at 1. Ainsworth’s award letter explicitly states his past-due Disability Insurance 13 Benefits in the amount of $96,634.60 are to be paid directly to him and $31,679.00 are to be 14 withheld toward the payment of attorney’s fees. See SSA Benefits Letter 2–3, ECF 31-3. This 15 means the total of Ainsworth’s past-due Disability Insurance Benefits is $128,313.60. See id. A 16 fee equaling 25% of the total Disability Insurance Benefits ($128,313.60) is $32,078.40. Counsel 17 requested $29,555.05, which equates to a 23.03% attorney fee. See Mem. 2. Nothing in the record 18 suggests that Counsel’s performance was substandard or that Counsel delayed proceedings in an 19 effort to increase the amount of fees awarded. Counsel obtained an excellent result for Plaintiff. 20 See id. at 3–12. 21 The Government’s response to the motion states that the Social Security Commissioner 22 takes no position on Counsel’s request for fees, and that the Commissioner submits a response 23 pursuant to his role “resembling that of a trustee” for Ainsworth. Resp. 2, ECF 34 (quoting 24 Gisbrecht, 535 U.S. at 798 n.6). The Government notes that based on Counsel’s representation 25 that he spent 22.3 hours on the district court proceedings, the amount requested would result in an 26 effective hourly rate of $1,325.34. Resp. 3 n.2; see Itemization, ECF 31-5. The Government then 27 cites Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1036–37 (N.D. Cal. 2003), a case in which the 1 from $187.55 to $694.44. Id.; Resp. 3 n.2. The Government also cites to Harrell v. Berryhill, No. 2 16-cv-02428-MEJ, 2018 WL 4075883, at *4 (N.D. Cal. Aug. 27, 2018), a case where the Court 3 reduced the counsel’s fees request of $1,213.83 per hour to $600.00 per hour. Id. The Government 4 flags that Counsel should not be awarded a windfall. Resp. 4. Finally, the Government notes that 5 because the Court previously approved an award of EAJA fees in the amount of $4,555.05, these 6 fees must be reimbursed to Ainsworth if the current fee motion is granted. Resp. 4–5. Counsel 7 acknowledges that the EAJA fees must be refunded to Ainsworth if the current motion is granted. 8 Mem. 2, 13. 9 The Court finds the hourly rate of $1,325.34 reasonable under the circumstances. See Villa 10 v. Astrue, No. CIV–S–06–0846 GGH, 2010 WL 118454, at *1–2 (E.D. Cal. Jan. 7, 2010) 11 (approving § 406(b) fee request exceeding $1000 an hour and noting that “[r]educing § 406(b) 12 fees after Crawford is a dicey business”); see also Williams v. Berryhill, No. EDCV 15-919-KK, 13 2018 WL 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an hourly 14 rate of $1,553.36 per hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502, at *3 15 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94 reasonable under the 16 circumstances); Palos v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. 17 Sept. 20, 2016) (fees sought translate to $1,546.39 per hour for attorney and paralegal services). 18 The Court notes that Hearn is now almost two decades old; accordingly, the fees discussed there 19 do not necessarily provide helpful guidance today. Meanwhile, the judgment in Harrell was later 20 amended to increase the awarded fees back to the requested amount of $1,213.83. See Harrell v. 21 Berryhill, No. 16-CV-02428-TSH, 2018 WL 4616735, at *4 (N.D. Cal. Sept. 24, 2018) (“The 22 Court finds that a de facto hourly rate of $1,213.83 is reasonable.”). 23 Here, Counsel assumed a substantial risk of not recovering attorneys’ fees because the 24 claims had been denied after exhausting administrative remedies. See, e.g., Sample v. Astrue, No. 25 C-07-04814 JSW EDL, 2010 WL 4688987, at *1 (N.D. Cal. July 21, 2010), report and 26 recommendation adopted, No. C 07-04814 JSW, 2010 WL 4688985 (N.D. Cal. Nov. 9, 2010); see 27 also Mem. 4–6. Counsel also completed a substantial amount of work for Ainsworth, including 1 After review of the record, the Court finds that the requested attorneys’ fees are reasonable and do 2 || not constitute a windfall. See Astrue, 2010 WL 4688987, at *1 (granting the requested attorneys’ 3 || fees in a case involving a similar risk and degree of representation by counsel). 4 Having considered the record in this case and the applicable law, the Court is satisfied that 5 Counsel’s request for attorneys’ fees in the amount of $29,555.05 under § 406(b) is reasonable. 6 || Plaintiff will be refunded the $4,555.05 in EAJA fees previously awarded and currently held in 7 trust. 8 9 Il. ORDER 10 (1) Counsel’s motion for attorneys’ fees under § 406(b) is GRANTED in the amount of 11 $29,555.05; and 12 (2) Ainsworth SHALL be refunded the $4,555.05 in EAJA fees previously awarded.

|| Dated: October 20, 2020 kom Lh han WI tn) 16

BETH LABSON FREEMAN

17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28