Kane v. Berryhill

Filing 30

ORDER by Judge Kandis A. Westmore granting 28 Motion for Attorney Fees. (kawlc2S, COURT STAFF) (Filed on 2/28/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL SCOTT KANE,
Plaintiff,

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Re: Dkt. No. 28

NANCY A. BERRYHILL,
Defendant.

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United States District Court
Northern District of California

ORDER GRANTING MOTION FOR
ATTORNEY'S FEES

v.

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Case No. 18-cv-02114-KAW

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Plaintiff Michael Scott Kane brought this action seeking review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”). Following the Court’s

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remand of the case for the immediate award of benefits, the Commissioner granted Plaintiff’s

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application for benefits, entitling him to $46,379.68 in retroactive benefits. (Dkt. No. 23 at 11;

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Mot. for Attorney’s Fees at 2, Dkt. No. 28.) Plaintiff’s counsel, John Metsker, now brings a

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motion for attorney’s fees under 42 U.S.C. § 1383(d)(2)(B), seeking an award of $11,594.92 in

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fees. (Id.) The Court deems the matter suitable for disposition without hearing pursuant to Civil

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Local Rule 7-1(b). Having considered the papers filed by the parties and the relevant legal

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authority, the Court GRANTS the motion, for the reasons set forth below.

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I.

BACKGROUND

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A.

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On May 19, 2015, Plaintiff applied for supplemental social security benefits.

Factual Background

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(Administrative Record (“AR”) 172.) The Social Security Administration (“SSA”) denied his

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application, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR

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42, 60, 100) The ALJ issued an unfavorable decision, and the Appeals Council denied Plaintiff’s

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request for review. (AR 2-4, 13-23.)

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On April 6, 2018, Plaintiff commenced this action for judicial review pursuant to 42

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U.S.C. § 405(g). (Compl. ¶ 3, Dkt. No. 1.) On September 23, 2018, Plaintiff filed his motion for

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summary judgment. (Dkt. No. 15.) On November 26, 2018, Defendant filed her cross-motion for

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summary judgment. (Dkt. No. 21.) On December 10, 2018, Plaintiff filed his reply. (Dkt. No.

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22.) On March 5, 2019, the Court granted Plaintiff’s motion for summary judgment and remanded

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the case for immediate payment of benefits. (Dkt. No. 23 at 11.)

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On May 10, 2019, the parties stipulated to the payment of attorney’s fees and costs under

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the Equal Access to Justice Act (“EAJA”) in the amount of $5,500. (Dkt. No. 26.) The $5,500

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has been received by counsel. (Mot. for Attorney’s Fees at 3.)

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On January 31, 2020, Plaintiff’s counsel filed the instant motion for attorney’s fees,

United States District Court
Northern District of California

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seeking $11,594.92 less the EAJA fee previously awarded, for a total of $6,094.92. (Mot. for

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Attorney’s Fees at 3.) Plaintiff’s counsel’s request is based on a contingent fee agreement with

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Plaintiff that permits Plaintiff’s counsel to seek 25% of past-due benefits for work performed

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before the courts. (Id.; see also Dkt. No. 28-1.) The Commissioner filed a response on February

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7, 2020, taking no position on the reasonableness of the request. (Def.’s Resp. at 1, Dkt. No. 29.)

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No reply was filed, nor was an opposition received from Plaintiff.

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II.

LEGAL STANDARD

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42 U.S.C. § 1383(d) governs the payment of representative fees for Supplemental Security

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Income benefits. These regulations track those for the award of attorney’s fees under 42 U.S.C. §

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406. 42 U.S.C. § 1383(d)(2)(A) (“The provisions of section 206 [42 U.S.C. § 406] . . . shall apply

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to this part”).

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42 U.S.C. § 406(b) governs fees for the representation of a claimant before the court,

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which is not to exceed “25 percent of the total of the past-due benefits to which the claimant is

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entitled by reason of such judgment . . . .” 42 U.S.C. § 406(b)(1)(A). When reviewing a motion

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for attorney’s fees, the Court begins its analysis “by looking first to the contingent-fee agreement,

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then testing it for reasonableness.” Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). In assessing

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the reasonableness of the fee agreement, the Court considers “‘the character of the representation

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and the results the representative achieved.’” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir.
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2009) (quoting Gisbrecht, 535 U.S. at 808). Thus, the Court may apply a downward adjustment in

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the event of “substandard performance, delay, or benefits that are not in proportion to the time

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spent on the case.” Id. While the Court is not to start with a lodestar analysis, it may use the

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lodestar analysis as an aid (but not a baseline) to assess the reasonableness of the fee. Id.

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III.

DISCUSSION

Plaintiff signed a contingent fee agreement that allowed Plaintiff's counsel to recover “25%

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(twenty-five percent) of the past-due benefits resulting from [his] claim” for representation before

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the courts. (Dkt. No. 28-1.) Plaintiff seeks $11,594.92, or 25% of the $46,379.68 awarded to

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Plaintiff in past-due benefits. (Mot. for Attorney’s Fees at 2.)

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The Court finds that the amount sought by Plaintiff's counsel is reasonable. First, the

United States District Court
Northern District of California

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results obtained by Plaintiff’s counsel were good, as Plaintiff’s motion for summary judgment

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resulted in an order remanding the case for the immediate award of benefits. (Dkt. Nos. 15, 23.)

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Second, the record reveals no undue delay or substandard performance that would warrant a

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downward adjustment. No extensions were requested by Plaintiff, and the case was resolved in

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less than a year. Third, the amount sought is consistent with the cap set by Congress in § 406(b),

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and is not disproportionate to the time spent by Plaintiff’s counsel in this action. Plaintiff’s

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counsel spent 28.3 hours on this case, representing an effective rate of $409.71/hour. (See

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Metsker Decl. ¶ 6, Dkt. No. 28-4.) This rate is comparable with rates awarded by other courts in

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this district. Compare with Lopez v. Astrue, Case No. 07-2649-PJH, 2011 WL 196885, at *4

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(N.D. Cal. Jan. 20, 2011) (finding reasonable a $14,778 award for 33.45 hours of attorney work,

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an effective rate of $441.79/hour); Goodbar v. Colvin, Case No. 11-cv-4572-SI, 2015 WL

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6674548, at *1 (N.D. Cal. Nov. 2, 2015) (awarding effective hourly rate of $772.09).

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The Court will also deduct the EAJA award from the $11,594.92 sought by Plaintiff’s

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counsel. In general, the Court must offset the § 406(b) attorney’s fee award by any EAJA fee

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award. Gisbrecht, 535 U.S. at 796. This is to “‘prevent attorneys from receiving double recovery

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under both the EAJA and § 406(b).’” Boissiere v. Astrue, No. C-09-02081 JCS, 2011 WL

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1045170, at *4 (N.D. Cal. Mar. 22, 2011) (quoting Jackson v. Comm’r of Soc. Sec., 601 F.3d

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1268, 1272 (11th Cir. 2010)). Here, Plaintiff’s counsel received the $5,500 in attorney’s fees
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under the EAJA. (Mot. for Attorney’s Fees at 3.)

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IV.

CONCLUSION

For the reasons stated above, the motion is GRANTED. The Court awards fees in the
amount of $11,594.92 less the EAJA fee of $5,500, for a total of $6,094.92.
IT IS SO ORDERED.
Dated: February 28, 2020
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KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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