Boitnott v. Colvin

Filing 29

ORDER GRANTING MOTION FOR ATTORNEYS FEES re 25 Motion for Attorney Fees. Signed by Judge Barry Ted Moskowitz on 3/11/2019. (sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14-cv-2977-BTM-DHB
DECIRE G. BOITNOTT,
Plaintiff,

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ORDER GRANTING MOTION FOR
ATTORNEY’S FEES

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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[ECF No. 25]

Defendant.

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Plaintiff’s attorney, Young Cho (“Counsel”), moves for an award of

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attorney’s fees pursuant to 42 U.S.C. § 406(b). Counsel asks the Court to award

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$11,592 in attorney’s fees from Plaintiff’s recovery of $70,639.00 in past-due

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social security benefits, and to order Counsel to refund Plaintiff the $4,300 in fees

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Plaintiff has already paid under the Equal Access to Justice Act (“EAJA”). The

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Social Security Administration Commissioner filed a brief as a “trustee” but takes

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no position on the Motion. Plaintiff has not responded to Counsel’s request. For

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the reasons set forth below, the Court GRANTS the motion for attorney’s fees.

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I.

BACKGROUND
On January 29, 2016, the Court granted Plaintiff’s Motion for Summary
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Judgment, denied Defendant’s Cross-Motion for Summary Judgment, and

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remanded this action for further administrative proceedings. (ECF No. 22). The

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Court also granted the parties’ joint motion for attorney’s fees under the EAJA in

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the amount of $4,300. (ECF Nos. 23, 24).

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On remand, the Administrative Law Judge (ALJ) found Plaintiff was

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disabled and awarded Plaintiff past-due disability benefits. (ECF No. 25-3). The

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Notice of Award informed Plaintiff that she was owed $70,639 in retroactive

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benefits, and that $17,592.25 of those past-due benefits would be withheld in the

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event that Counsel requested attorney’s fees for work performed before this

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Court. (ECF No. 25-4).
Counsel now requests $11,592 in attorney’s fees pursuant to a contingent-

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fee agreement in which Plaintiff agreed to give Counsel 25% of any past-due

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benefits award. (ECF Nos. 25-1, 25-2).

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II.

LEGAL STANDARD

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42 U.S.C. § 406(b)(1) provides:

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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 . . .

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When evaluating a request for a contingent fee under § 406(b), courts must
first look to the contingent-fee agreement, then test it for reasonableness.
Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). The following factors, alone or
in combination, may warrant a reduction: (1) the result achieved; (2)
“substandard representation”; (3) delay by counsel; and (4) whether “the benefits
are large in comparison to the amount of time counsel spent on the case,”
thereby resulting in a windfall. Id. at 805; see also Crawford v. Astrue, 586 F.3d
1142, 1151–53 (9th Cir. 2009) (en banc). Although a simple lodestar approach is

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not permitted, courts may request “a record of the hours spent representing the

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claimant and a statement of the lawyer’s normal hourly billing charge for

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noncontingent fee cases,” to aid in assessing a fee’s reasonableness. Gisbrecht,

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535 U.S. at 808; Crawford, 586 F.3d at 1151. Counsel bears the burden of

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establishing that the requested fee is reasonable. Crawford, 586 F.3d at 1149.

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III.

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DISCUSSION
Plaintiff signed a 25% contingent fee agreement, the maximum allowed by

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406(b). (ECF No. 25-2). Nothing in the record suggests that the agreement is

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invalid. Turning to the reasonableness of the requested award, the Court finds

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that the result was successful and that there is no evidence of substandard

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representation or delay. The only remaining consideration is the fourth Gisbrecht

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factor, i.e., whether “the benefits are large in comparison to the amount of time

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[C]ounsel spent on the case” thereby resulting in a windfall. Gisbrecht, 535 U.S.

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at 805.

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Counsel submits that Counsel’s law office expended 25.3 hours of attorney

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and paralegal time on the case, and requests $11,592 in fees, which is less than

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the maximum $17,592.25 that the Commissioner withheld pursuant to 42 U.S.C.

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406(b). (ECF No. 25-5 (itemized billing hours)). Counsel’s effective hourly rate is

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$458.18.1 This falls within the range of effective hourly rates courts typically

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award in social security cases. See, e.g., Crawford, 586 F.3d at 1153 (Clifton, J.,

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concurring in part and dissenting in part) (noting majority approved awards of

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$519, $875, and $902); Iler v. Berryhill, No. 14-CV-2026-MMA (BGS), 2018 WL

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3969182, at *2 (S.D. Cal. Aug. 20, 2018) (approving effective hourly rate of

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$341); Richardson v. Colvin, No. 15-CV-1456-MMA-BLM, 2017 WL 1683062, at

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*2 (S.D. Cal. May 2, 2017) (approving effective hourly rate of $770); Likens v.

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Colvin, No. 11-CV-0407-LAB (BGS), 2014 WL 6810657, at *2 (S.D. Cal. Dec. 2,

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Counsel miscalculates the effective hourly rate as $497.71. (ECF No. 25-1 at 5).
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2014) (approving effective hourly rate of $666.68); Nash v. Colvin, No. 12-CV-

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2781-GPC (RBB), 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) (approving

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effective hourly rate of $656 per hour); Sproul v. Astrue, No. 11-CV-1000-IEG

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(DHB), 2013 WL 394053, at *2 (S.D. Cal. Jan. 30 2013) (approving effective

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hourly rate of $800). The Court concludes the requested fee is reasonable.

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IV.

CONCLUSION
The motion for attorney’s Fees is GRANTED. The Court awards attorney’s

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fees to Young Cho in the amount of $11,592. Counsel must reimburse Plaintiff

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$4,300, the amount paid by the government under the EAJA.

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IT IS SO ORDERED.

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Dated: March 11, 2019

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