1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 FAUSTINO CANTERA, Case No. 5:20-cv-05126-EJD

9 Plaintiff, ORDER GRANTING MOTION FOR

ATTORNEY’S FEES

10 v.

11 ANDREW SAUL, Re: ECF No. 25 Defendant. 12

13 Before the Court is a motion for attorney’s fees (“Motion”) pursuant to 42 U.S.C. § 406(b), 14 by which Plaintiff’s counsel Andrew Koenig seeks an award of $22,934.88 as a percentage of the 15 past-due disability benefits owed to Plaintiff under Title II of the Social Security Act. Defendant, 16 the acting Social Security Commissioner, has submitted a response but takes no position as to the 17 reasonableness of the fee. 18 Having reviewed the moving papers, Plaintiff’s counsel time entries, and Defendant’s 19 response, the Court GRANTS Plaintiff’s Motion for Attorney’s Fees. 20 I. BACKGROUND 21 On July 27, 2020, Plaintiff filed a complaint seeking judicial review of the final denial of 22 his application for disability benefits. ECF No. 1. On March 10, 2021, after Plaintiff filed a 23 motion for summary judgment, the parties stipulated to a voluntary remand for further 24 administrative action before an administrative law judge (“ALJ”). ECF No. 21. The parties 25 further stipulated to awarding Plaintiff attorney fees under the Equal Access to Justice Act 26 (“EAJA”) amounting to $6,960.63 in fees and $400 for court costs. ECF No. 23. 27 Following remand, Plaintiff prevailed in the administrative proceedings and was awarded 1 past-due benefits by the ALJ, totaling $115,739.50. Decl. Andrew T. Koenig (“Koenig Decl.”) ¶ 2 3; see also Koenig Decl., Attachment A (“SSA Notice”), at 3. Plaintiff’s counsel in both this 3 matter and in the administrative proceedings, Andrew Koenig, received $5,896 in fees for his 4 representation in the administrative proceedings. Koenig Decl. ¶ 3. 5 Prior to filing the complaint in this action, Plaintiff had entered into a contingency fee 6 agreement with Plaintiff’s counsel on July 24, 2020. Koenig Decl., Attachment B. Per the 7 agreement, Mr. Koenig was to receive 25% of the total lump-sum past-due benefits awarded to 8 Plaintiff. Id.; see also Koenig Decl. ¶ 5. 9 The Commissioner submitted a response to Mr. Koenig’s motion, analyzing the fee request 10 but taking no position as to the reasonableness of the award. ECF No. 26. The Commissioner 11 agrees that Mr. Koenig should refund or reimburse $6,960.63 to the Plaintiff as the total amount of 12 EAJA fees he had previously accepted. Id. at 4. 13 II. LEGAL STANDARD 14 Under the Social Security Act, an attorney who successfully represents a claimant before a 15 court may seek an award of attorneys’ fees not to exceed 25% of any past-due benefits eventually 16 awarded. 42 U.S.C. § 406(b). While contingency fee agreements are permissible in Social 17 Security cases, § 406(b) “calls for court review of such arrangements as an independent check, to 18 assure that they yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 19 807 (2002). In deciding whether a fee agreement is reasonable, courts must consider “the 20 character of the representation and the results the representative achieved.” Crawford v. Astrue, 21 586 F.3d 1142, 1151 (9th Cir. 2009). The court “first look[s] to the fee agreement and then 22 adjust[s] downward if the attorney provided substandard representation or delayed the case, or if 23 the requested fee would result in a windfall.” Id. While a court may consider an attorney’s 24 lodestar in deciding whether an award of fees under § 406(b) is reasonable, “a lodestar analysis 25 should be used only as an aid (and not a baseline) in assessing the reasonableness of the fee.” 26 Laboy v. Colvin, 631 F. App’x 468, 469 (9th Cir. 2016). 27 Where a claimant’s attorney has been awarded fees under both the EAJA and § 406(b), the 1 attorney must “refund to the claimant the amount of the smaller fee.” Crawford, 586 F.3d at 1144 2 n.3 (quoting Gisbrecht, 535 U.S. at 796). 3 III. DISCUSSION 4 Mr. Koenig requests $22,934.88 in fees under § 406(b), which was calculated by taking 5 25% of Plaintiff’s past-due benefits of $115,739.50 ($28,934.88) and deducting the $6,000 already 6 paid to Mr. Koenig under § 406(a) for his representation in the administrative proceedings. In 7 support of his Motion, Mr. Koenig submits a declaration indicating that he spent 34.9 hours in the 8 federal action, which includes drafting the complaint, reviewing the SSA administrative record, 9 and drafting the motion for summary judgment. Koenig Decl. ¶ 7. His regular hourly rate for 10 non-contingency matters is $375.00. Id. ¶ 6. 11 The Court finds that Mr. Koenig’s requested fees are reasonable for the services he has 12 rendered. The requested fee is just under 20% of Plaintiff’s past-due benefits, which is within the 13 25% statutory limit set by § 406(b).1 ECF No. 25-2. Furthermore, nothing in the record or Mr. 14 Koenig’s submitted time records suggests that his performance was substandard or that he 15 engaged in dilatory conduct to increase the amount of fees he would be awarded. The Court also 16 notes that an award of $22,934.88 for 34.9 hours of work would yield an effective hourly rate of 17 $657.16 per hour, which is well within the range for effective hourly fees that courts in this district 18 have awarded under § 406(b). See, e.g., S.L. v. Kijakazi, No. 20-cv-04240-RS, 2023 WL 2352240, 19 at *2 (N.D. Cal. Mar. 3, 2023) (collecting cases that awarded fees with effective hourly rates 20 ranging from $874.72 to $1,213.83). Mr. Koenig’s requested amount, therefore, is a reasonable 21 fee for his representation. 22

23 1 The Court notes that, although the contingency agreement obligates Mr. Koenig to credit the $6,000 he already received under § 406(a) in calculating his request for § 406(b) fees, the statute 24 itself does not demand such a deduction. The Ninth Circuit has held that the 25% limit in § 406(b) only applies to attorney’s fees awarded under § 406(b) and not the combined fees awarded under 25 both § 406(a) and § 406(b). Clark v. Astrue, 529 F.3d 1211, 1218 (9th Cir. 2008) (“We hold that the plain text of 42 U.S.C. § 406(b) limits only the amount of attorney's fees awarded under § 26 406(b), not the combined fees awarded under § 406(a) and § 406(b), to 25% of the claimant's past- due benefits.”); Laboy, 631 F. App’x at 469 (“Under Clark, the 25% cap in § 406(b) applies only 27 to fees for representation before the court. Such fees are assessed independent of fees for work before the agency.”). 1 IV. CONCLUSION 2 Based on the foregoing, the Court GRANTS Mr. Koenig’s Motion for Attorney’s Fees. 3 Mr. Koenig is awarded $22,934.88 pursuant to 42 U.S.C. § 406(b). Upon receipt of this fee, Mr. 4 Koenig is ORDERED to refund to Plaintiff the fees he received under EAJA, in the amount of 5 || $6,960.63. 6 IT IS SO ORDERED. 7 Dated: May 10, 2023 8 9

EDWARD J. DAVILA

10 United States District Judge 11 12

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ORDER GRANTING MOTION FOR ATTORNEY’S FEES