United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
sought judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”),
denying her application for disability benefits under the
Social Security Act (“the Act”). On September 26,
2018, the court granted plaintiff's motion for summary
judgment, denied the Commissioner's cross-motion for
summary judgment, and remanded the action to the Commissioner
for an immediate award benefits. ECF No. 28.
pending before the court is plaintiff's May 9, 2019
motion for an award of attorney's fees pursuant to 42
U.S.C. § 406(b). ECF No. 36. On June 5, 2019, defendant
filed a response to the motion asserting that he “is
not in a position to either assent or object” to the
fee request, but suggesting that the amount requested is
unreasonably high. ECF No. 39 at 2-4. For the reasons set
forth below, the motion will be granted.
REASONABLENESS OF FEE REQUEST
outset of the representation, plaintiff and her counsel
entered into a contingent-fee agreement, wherein plaintiff
agreed to pay counsel 25% of any award of past-due benefits.
ECF No. 36.1 at 1. Plaintiff's counsel now seeks
attorney's fees in the amount of $26, 360.00,
representing that plaintiff has been awarded $105, 440.00 in
past-due supplemental security income benefits. ECF No. 36 at 5.
Counsel avers that he and a non-attorney legal assistant/law
clerk spent a total of 59.3 hours on this case in federal
court. Id. at 8; see also ECF No. 32 at
1-2. Billing records attached to the motion reflect that
counsel worked 34.3 hours and his clerk worked 25 hours. ECF
are entitled to fees for cases in which they have
successfully represented social security claimants:
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment,
and the Commissioner of Social Security may . . . certify the
amount of such fee for payment to such attorney out of, and
not in addition to, the amount of such past-due benefits.
42 U.S.C. § 406(b)(1)(A). “In contrast to fees
awarded under fee-shifting provisions such as 42 U.S.C.
§ 1988, the fee is paid by the claimant out of the
past-due benefits awarded; the losing party is not
responsible for payment.” Crawford v. Astrue,
586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing
Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)).
The goal of fee awards under § 406(b) is “to
protect claimants against ‘inordinately large fees'
and also to ensure that attorneys representing successful
claimants would not risk ‘nonpayment of [appropriate]
fees.'” Parrish v. Comm'r of Soc. Sec.
Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting
Gisbrecht, 535 U.S. at 805).
statutory maximum fee is not an automatic entitlement, and
the court must ensure that the fee requested is reasonable.
Gisbrecht, 535 U.S. at 808-09 (“406(b) does
not displace contingent-fee agreements within the statutory
ceiling; instead, § 406(b) instructs courts to review
for reasonableness fees yielded by those agreements”).
“Within the 25 percent boundary . . . the attorney for
the successful claimant must show that the fee sought is
reasonable for the services rendered.” Id. at
807. “[A] district court charged with determining a
reasonable fee award under § 406(b)(1)(A) must respect
‘the primacy of lawful attorney-client fee
arrangements,' ‘looking first to the contingent-fee
agreement, then testing it for reasonableness.'”
Crawford, 586 F.3d at 1149 (quoting
Gisbrecht, 535 U.S. at 793, 808).
determining whether the requested fee is reasonable, the
court considers “‘the character of the
representation and the results achieved by the
representative.'” Crawford, 586 F.3d at
1151 (quoting Gisbrecht, 535 U.S. at 808). In
determining whether a reduction in the fee is warranted, the
court considers whether the attorney provided
“substandard representation or delayed the case,
” or obtained “benefits that are not in
proportion to the time spent on the case.” Id.
Finally, the court considers the attorney's record of
hours worked and counsel's regular hourly billing charge
for non-contingent cases. Crawford, 586 F.3d at
1151-52 (citing Gisbrecht, 535 U.S. at 808); see
also E.D. Cal. R. 293(c)(1) (in fixing attorney's
fees the court considers “the time and labor
required”). Below, the court will consider these
factors in assessing whether the fee requested by counsel in
this case pursuant to 42 U.S.C. § 406(b) is reasonable.
plaintiff's counsel is an experienced attorney who
secured a successful result for plaintiff. See ECF
No. 36 at 5. There is no indication that a reduction of fees
is warranted due to any substandard performance by counsel.
There is also no evidence that plaintiff's counsel
engaged in any dilatory conduct resulting in excessive delay.
Finally, counsel requests the full 25% contingent fee agreed
to at the outset, which the court finds not excessive in
relation to the benefits awarded. Counsel's effective
hourly rate equates to about $768 per hour when only
counsel's hours are credited ($26, 360 / 34.3), or about
$444 per hour ($26, 360 / 59.3) when both counsel and his law
clerk's hours are credited. Under either calculation,
courts in this district have found reasonable greater
effective hourly rates in social security contingency fee
arrangements. See Lovejoy v. Berryhill, No.
1:15-CV-00360-SKO, 2018 WL 3629922, at *3 (E.D. Cal. July 27,
2018) (effective hourly rate of $1, 263.63 for 19.8 hours of
work, including paralegal hours); Thomas v. Colvin,
No. 1:11-cv-01291-SKO, 2015 WL 1529331, at *2-3 (E.D. Cal.
Apr. 3, 2015) (effective hourly rate of $1, 093.22 for 40.8
hours of work); Jamieson v. Astrue, No. 1:09-CV-0490
LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011)
(effective hourly rate of $1, 169.49 for 29.5 hours of work);
see also Villa v. Astrue, No. CIV-S-06-0846 GGH,
2010 WL 118454, at *1-2 (E.D. Cal. 2010) (noting that
“[r]educing § 406(b) fees after Crawford
is a dicey business”).
although counsel's typical hourly rate is $400-$450 in
non-contingency cases (ECF No. 37 at 2), the court does not
find reason to reduce the fee requested in this case. In
making this determination, the court recognizes the
contingent fee nature of this case and counsel's
assumption of the risk of going uncompensated in agreeing to
represent plaintiff on such terms. See Crawford, 586
F.3d at 1152 (“[t]he attorneys assumed significant risk
in accepting these cases, including the risk that no benefits
would be awarded or that there would be a long court or
administrative delay in resolving the cases”). Finally,
counsel has submitted a detailed billing statement in support
of the requested fee. ECF No. 36.3.
for the reasons stated above, the court concludes that the
fees sought by counsel pursuant ...