Alicia De Santiago v. Berryhill
- Proceeding
- district
- Area
- civil
- Panel
- Andrew G. Schopler (author)
Analysis
Plaintiff's counsel moved for attorney's fees under 42 U.S.C. § 406(b) and reimbursement of EAJA fees following a favorable remand and award of past-due benefits. The court granted the motion, awarding $4,911.00 in fees and ordering counsel to reimburse the plaintiff $2,800.00 in EAJA fees.
| What the court decided | The model |
|---|---|
Motion for attorney's fees under 42 U.S.C. § 406(b) granted“Counsel’s request for fees under 42 U.S.C. § 406(b) is GRANTED. Counsel is entitled to $4,911.00 out of plaintiff's past-due benefits.” | agree with court The court correctly applied the statutory cap (25%) and the reasonableness factors from Ninth Circuit precedent (Crawford, Avina). The fee requested (12%) is well below the cap, and the effective hourly rate ($307.90) is within the range of reasonableness cited in the order. The record supports the finding that the representation was successful (remand and benefits awarded). |
Order to reimburse plaintiff for EAJA fees“Counsel must reimburse plaintiff the $2,800.00 EAJA fees already paid. (See ECF 23); Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (noting that, when § 406(b) fees are awarded, “the claimant’s attorney must refund to the claimant the amount of the smaller [EAJA] fee’’).” | agree with court The court correctly applied the holding in Gisbrecht v. Barnhart, which mandates that when a § 406(b) fee is awarded, the attorney must refund the smaller of the EAJA fee or the § 406(b) fee to the claimant. Since the § 406(b) fee ($4,911) is larger than the EAJA fee ($2,800), the attorney must refund the EAJA fee. |
The order itself: sound — The order is procedurally correct and applies the relevant legal standards from binding Ninth Circuit and Supreme Court precedent. It identifies the statutory cap, the source of payment, the reasonableness factors, and the specific rule for handling EAJA fee refunds. The factual findings (successful remand, no dilatory conduct, reasonable hourly rate) support the conclusion.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 BERTHA ALICIA D.S., Case No.: 3:19-cv-0935-AGS 11 Plaintiff, ORDER GRANTING MOTION FOR 42 U.S.C. § 406(b) FEES (ECF 24) 12 v. 13 Kilolo KIJAKAZI, 14 Defendant. 15 16 Plaintiff’s counsel moves for attorney’s fees under 42 U.S.C. § 406(b). Counsel 17 requests “$4,911.00” with “an order to reimburse [plaintiff] the amount of $2,800.00 for 18 EAJA fees previously paid.” (ECF 24, at 1.) The current request represents about 12% of 19 plaintiff’s past due benefits. Plaintiff was served with the motion and given an opportunity 20 to object. (See ECF 24, at 1.) To date, she hasn’t. 21 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a 22 claimant,” “the court may determine and allow as part of its judgment a reasonable fee for 23 such representation, not in excess of 25 percent of the total of the past-due benefits . . . .” 24 42 U.S.C. § 406(b). “In contrast to fees awarded under fee-shifting provisions such as 25 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the 26 losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th 27 Cir. 2009) (en banc). In evaluating an attorney’s fee request, courts “must respect the 28 primacy of lawful attorney-client fee arrangements,” “looking first to the contingent-fee 1 agreement, then testing for reasonableness.” Crawford, 586 F.3d at 1148 (citation omitted). 2 || Factors the court may consider in evaluating the reasonableness of the attorney fee award 3 “(1) the character of the representation; (2) the results achieved; (3) whether the 4 ||attorney engaged in dilatory conduct; (4) whether the benefits are large in comparison to 5 amount of time counsel spent on the case; and (5) the attorney's record of hours worked 6 ||and counsel's regular hourly billing charge for non-contingent cases.” Avina v. Saul, No. 7 || 18-CV-1728 W (MSB), 2021 WL 2662309, at *1 (S.D. Cal. June 29, 2021). 8 Counsel succeeded in convincing the Commissioner to an agreed remand. (See ECF 9 || 19, at 1.) On remand, plaintiff was granted disability benefits, including $40,847.52 in past- 10 benefits. (ECF 24, at 6.) There is no evidence of dilatory conduct. Counsel’s request 11 12% is less than half of the maximum possible rate. Finally, the effective hourly rate— 12 $307.90 ($4,911.00 + 15.95 hours = $307.90 per hour)—supports the conclusion that the 13 || fee request is reasonable. See Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 14 2003) (collecting cases approving fees between ~$200 an hour to ~$700 an hour twenty 15 || years ago). 16 Counsel’s request for fees under 42 U.S.C. § 406(b) is GRANTED. Counsel is 17 || entitled to $4,911.00 out of plaintiff's past-due benefits. Counsel must reimburse plaintiff 18 || the $2,800.00 EAJA fees already paid. (See ECF 23); Gisbrecht v. Barnhart, 535 U.S. 789, 19 || 796 (2002) (noting that, when § 406(b) fees are awarded, “the claimant’s attorney must 20 ||refund to the claimant the amount of the smaller [EAJA] fee’’). 21 ||Dated: September 3, 2021 22 — | 3 Hon. ndrew G. Schopler United States Magistrate Judge 24 25 26 27 28