Villalpando v. Kijakazi

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Case No.: 3:22-cv-0004-AGS 4 MARIO V., ORDER GRANTING MOTION FOR 42 U.S.C. § 406(b) FEES (ECF 16) 5 Plaintiff, 6 v. 7 Frank BISIGNANO, 8 Defendants. 9 10 Under 42 U.S.C. § 406(b), plaintiff’s counsel seeks “$36,000.00” in attorney’s fees, 11 offset by $1609.79 in EAJA fees. (ECF 16, at 5). This request represents about 17.58% of 12 plaintiff’s past-due benefits, which total “$204,710.00.” (ECF 16, at 1.) Plaintiff has not 13 objected, and the government does not oppose. (ECF 17, at 5.) 14 “[W]hen a court ‘renders a judgment favorable to a claimant who was represented 15 before the court by an attorney,’ the court may award a ‘reasonable fee for such 16 representation, not in excess of 25 percent of the total of the past-due benefits . . . .’” 17 Culbertson v. Berryhill, 586 U.S. 53, 59 (2019) (quoting 42 U.S.C. § 406(b)(1)(A)). Courts 18 determining § 406(b) fee awards must respect “the primacy of lawful attorney-client fee 19 agreements,” “looking first to the contingent-fee agreement, then testing it for 20 reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (cleaned up). 21 “Within the 25 percent boundary,” “the attorney for the successful claimant must show that 22 the fee sought is reasonable for the services rendered.” Id. at 1148. Factors the courts may 23 consider when assessing reasonableness of the attorney-fee award are: “(1) the character 24 of the representation; (2) the results achieved; (3) whether the attorney engaged in dilatory 25 conduct; (4) whether the benefits are large in comparison to the amount of time counsel 26 spent on the case; and (5) the attorney’s record of hours worked and counsels regular hourly 27 billing charge for non-contingent cases.” Avina v. Saul, No. 18-cv-1728-W-MSB, 28 2021 WL 2662309, at *1 (S.D. Cal. June 29, 2021) (citing Crawford, 586 F.3d at 1148). 1 Plaintiff agreed to pay his attorney “25% of past-due benefits” in the event of a 2 favorable award. (ECF 16-2, at 1). This bargained-for percentage is presumptively valid. 3 See Gisbrecht v. Barnhart, 535 U.S. 789, 807–808 (2002). Counsel invested resources on 4 contingency and successfully achieved remand for plaintiff’s case. (ECF 16-1.) There is no 5 evidence that counsel engaged in any dilatory conduct; to the contrary, counsel achieved 6 plaintiff’s favorable decision in only 14.2 hours of attorney time, which is imminently 7 reasonable. (See ECF 16-4); Costa v. Commissioner of Soc. Sec. Admin., 690 F.3d 1132, 8 1136 (9th Cir. 2012) (noting that “twenty to forty hours is the range most often requested 9 and granted in social security cases”). 10 Although counsel’s requested effective hourly rate of “$2,535.21” is high (see 11 ECF 16, at 4), it is not grossly outside the norm of what courts often approve. See Kazanjian 12 v. Astrue, No. 09 Civ. 3678 (BMC), 2011 WL 2847439, at *2 (E.D.N.Y. July 15, 2011) 13 (awarding “$48,064” for “19.75 hours” of work, an effective hourly rate of $2,433); 14 Theresa Y. v. O’Malley, No. 21-CV-0814-AGS, 2025 WL 1265863, at *1–2 (S.D. Cal. 15 May 1, 2025) (awarding “$45,516.25” in fees for “18.9 hours” of work, yielding an 16 effective hourly rate of $2,050.58). Moreover, counsel preemptively reduced the attorney’s 17 fees to 17.58% of the total past-due benefits, instead of requesting the agreed-upon 25%. 18 (ECF 16, at 1; ECF 16-2, at 1.) 19 When a valid attorney-client fee arrangement exists, the fee statute is not meant to 20 displace that agreement, but to act as a check on the reasonableness of fees. See Gisbrecht, 21 535 U.S. at 793. Since Gisbrecht, “district courts generally have been deferential to the 22 terms of contingency fee contracts in § 406(b) cases, accepting that the resulting de facto 23 hourly rates may exceed those for non[-]contingency-fee arrangements.” Hearn v. 24 Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). The Court concludes that “the 25 requested fees” are reasonable and plaintiff’s counsel should not be penalized for 26 efficiency. See Crawford, 586 F.3d at 1151. 27 Counsel’s unopposed request for fees under 42 U.S.C. § 406(b) is GRANTED. 28 Counsel is entitled to $36,000.00 out of plaintiff’s past-due benefits. Counsel must 1 ||reimburse plaintiff the $1,609.79 EAJA fees already paid. (See ECF 12, at 1); see also 2 || Gisbrecht, 535 U.S. at 796 (noting that, when section 406(b) fees are awarded, “the 3 ||claimant’s attorney must refund to the claimant the amount of the smaller [EAJA] □□□□□□ 4 || Dated: June 12, 2025 6 Andrew G. Schopler , United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28