1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

J.M.,

7 Case No. 20-cv-07196-JCS Plaintiff, 8 v. ORDER GRANTING MOTION FOR 9 ATTORNEY FEES

KILOLO KIJAKAZI,

10 Re: Dkt. No. 43 Defendant. 11

12 13 I. INTRODUCTION 14 Helen Zane (“counsel”), who represented J.M. in this matter under a contingency fee 15 agreement, brings a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”), seeking 16 an award of $32,085.00 in attorney fees for work before this Court. For the reasons stated below, 17 the Motion is GRANTED. 1 18 II. BACKGROUND 19 J.M. entered into a contingent fee agreement with counsel providing that counsel would be 20 awarded 25% of all past-due benefits J.M. and their family received as a result of this action. Zane 21 Decl. ¶ 4 & Ex. C (fee agreement). J.M. initiated this action to seek review of the final decision by 22 the Commissioner of the Social Security Administration (“the Commissioner”) denying their 23 Application for disability insurance benefits under Title II of the Social Security Act and 24 supplemental security income (“SSI”) under Title XVI of the Social Security Act. On March 2, 25 2022, the Court granted J.M.’s motion for summary judgment, denied the Commissioner’s motion 26 for summary judgment and remanded to the Social Security Administration for immediate 27 1 calculation and award of benefits. Dkt. no. 32. 2 On remand, the Commissioner initially notified J.M. that they would be awarded 3 $92,201.00 in past due benefits, and that the Commissioner was withholding $23,050.25 to cover a 4 potential fee award by the Court. Zane Decl. ¶ 6 & Ex. A (July 3, 2022 Notice). Subsequently, the 5 Commissioner notified J.M. that the past due benefits amount had been reduced to $84,918.55 to 6 account for past SSI payments; the amount withheld for attorneys’ fees remained the same as 7 stated in the previous notice. Zane Decl. ¶ 8 & Ex. D (January 28, 2023 Notice). The 8 Commissioner sent an additional notice dated March 14, 2023 stating that past due auxiliary 9 benefits for J.M.’s minor child amounted to $46,088.00 and that $11,522.00 had been withheld for 10 attorneys’ fees. Zane Decl. ¶ 10 & Ex. B. 11 On June 22, 2022, the Court approved a stipulated award of fees in the amount of $7,000 12 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). In the Motion, counsel 13 requests a fee of $32,085.00 under the contingency fee contract and 42 U.S.C. § 406(b), noting in 14 the Motion that if her request for fees under Section 406(b) is granted, the fees awarded pursuant 15 to the EAJA stipulation would be paid to J.M. The requested amount constitutes 23.2% of the past 16 due benefits awarded to Plaintiff and their minor child if the original past due benefit calculation 17 amount of $92,201.00 is used. If the reduced amount of J.M.’s past due benefits of $84,918.55 is 18 used, the requested amount constitutes 25% of the past due benefits awarded to J.M. and their 19 minor child. Zane has offered time records showing that the total attorney time spent on the case 20 was 35.65 hours. Zane Decl. ¶ 18 & Ex. F. Thus, counsel seeks fees at an effective hourly rate of 21 $900. 22 In the Motion, counsel argues that her request is reasonable under Gisbrecht v. Barnhart, 23 535 U.S. 789, 122 (2002) because J.M. entered into a valid contingent fee agreement with Counsel 24 and that agreement required Counsel to assume the risk that she would receive no compensation 25 for the time spent representing J.M in this action if J.M. did not prevail. She further asserts that 26 the amount she requests in fees is reasonable in light of the services performed and the result 27 obtained. The Commissioner filed a response in which it takes no position as to the

III. ANALYSIS

1 The scheme established by Congress for attorney fee awards in cases involving social 2 security claims is described by the Supreme Court as follows: 3 Fees for representation of individuals claiming Social Security old- 4 age, survivor, or disability benefits, both at the administrative level and in court, are governed by prescriptions Congress originated in 5 1965. Social Security Amendments of 1965, 79 Stat. 403, as amended, 42 U.S.C. § 406. . . . The statute deals with the 6 administrative and judicial review stages discretely: § 406(a) governs fees for representation in administrative proceedings; § 406(b) 7 controls fees for representation in court. See also 20 CFR § 404.1728(a) (2001). 8 Gisbrecht, 535 U.S. at 793–94. Subsection 406(b) provides, in relevant part, that “[w]henever a 9 court renders a judgment favorable to a claimant under this subchapter who was represented 10 before the court by an attorney, the court may determine and allow as part of its judgment a 11 reasonable fee for such representation, not in excess of 25 percent of the total of the past-due 12 benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of 13 Social Security may . . . certify the amount of such fee for payment to such attorney out of, and 14 not in addition to, the amount of such past-due benefits.” 42 U.S.C. § 406(b). 15 Under Gisbrecht, courts should “approach fee determinations [under § 406(b)] by looking 16 first to the contingent-fee agreement, then testing it for reasonableness,” and may reduce the 17 recovery “based on the character of the representation and the results the representative achieved.” 18 Gisbrecht, 535 U.S. at 808. The Ninth Circuit has applied Gisbrecht to mean that “court[s] may 19 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 20 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (citing 21 Gisbrecht 535 U.S. at 808). In this analysis, courts “generally have been deferential to the terms 22 of the contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates 23 may exceed those for non-contingency fee arrangements,” noting that “basing a reasonableness 24 determination on a simple hourly rate basis is inappropriate when an attorney is working pursuant 25 to a reasonable contingency contract for which there runs a substantial risk of loss.” Hearn v. 26 Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). 27 In addition to the fees permitted under § 406(b), the Equal Access to Justice Act (“EAJA”), 1 enacted in 1980, allows a party who prevails against the United States in court, including a 2 successful Social Security benefits claimant, to receive an award of fees payable by the United 3 States if the Government’s position in the litigation was not “substantially justified.” Gisbrecht, 4 535 U.S. at 796 (citing 28 U.S.C. § 2412(d)(1)(A)). In contrast to fees awarded under § 406(b), 5 EAJA fees are based on the “time expended” and the attorney’s “[hourly] rate.” 28 U.S.C. § 6 2412(d)(1)(B). In Gisbrecht, the Supreme Court explained that “Congress harmonized fees 7 payable by the Government under EAJA with fees payable under § 406(b) out of the claimant’s 8 past-due Social Security benefits in this manner: Fee awards may be made under both 9 prescriptions, but the claimant’s attorney must refun[d] to the claimant the amount of the smaller 10 fee.’” 535 U.S. at 796 (citing Act of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 186 (1985)). 11 Accordingly, “an EAJA award offsets an award under [42 U.S.C. § 406(b)],” increasing “up to the 12 point the claimant receives 100 percent of the past-due benefits.” Gisbrecht, 535 U.S. at 796. 13 The Court finds Counsel’s request to be reasonable under Gisbrecht. First, Counsel has 14 presented a valid contingent fee agreement that provides for attorneys’ fees in the amount of 25% 15 of past due benefits awarded to J.M. and their family in the event J.M. prevails in this case. Zane 16 Decl., Ex. C. Second, she has supplied a timesheet documenting hours worked, id., Ex. F, which 17 the Court finds to be reasonable. Third, there is no evidence that Counsel’s work was substandard 18 or that the fee award is disproportionate to the amount of work on the case. Rather, counsel 19 obtained an excellent result for her client. The Court further finds that the effective rate of 20 $900/hour is within the range of what courts have approved in recent years. See, e.g., Crawford v. 21 Astrue, 586 F.3d 1142 1153 (9th Cir. 2009) (approving de facto hourly rates of $519, $875, and 22 $902 in 2009); Reddick v. Berryhill, 16-CV-29-BTM-BLM, 2019 WL 1112080, at *2–3 (S.D. Cal. 23 Mar. 11, 2019) (collecting cases and approving de facto hourly rate of $1,080). 24 For these reasons, the Court finds that the fees requested by counsel are reasonable under 25 Gisbrecht. 26 IV. CONCLUSION 27 For the reasons stated above, the Motion is GRANTED. Counsel is awarded $32,085.00 in 1 paid to J.M. 2 IT IS SO ORDERED. 3 4 Dated: June 4, 2024 5

J PH C. SPERO

6 nited States Magistrate Judge 7 8 9 10 11 12

© 15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28