Principato v. Saul

Filing 30

ORDER Granting Motion For 42 U.S.C. §406(b) FEES (ECF 26 ). Signed by District Judge Andrew G. Schopler on 01/07/2025. (mef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GIANNA P.,

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ORDER GRANTING MOTION FOR
42 U.S.C. § 406(b) FEES (ECF 26)

Plaintiff,

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v.

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Martin O’MALLEY,

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Case No.: 3:20-cv-01808-AGS

Defendants.

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Plaintiff’s counsel moves for attorney’s fees under 42 U.S.C. § 406(b) after

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successfully receiving past due Social Security benefits of $105,974.90 for plaintiff.

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(ECF 26, at 16; see also ECF 26-3.) Counsel requests $10,500.00, offset by “an order to

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reimburse [plaintiff] the amount of $2,900.00 for . . . fees previously paid.” (ECF 26, at 1;

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see also ECF 28, at 3 (clarifying a typo in the original fee petition).) To date, neither

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plaintiff nor the Commissioner of Social Security has objected.

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“Under § 406(b), when a court renders a judgment favorable to a claimant who was

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represented before the court by an attorney, the court may award a reasonable fee for such

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representation, not in excess of 25 percent of the total of the past-due benefits to which the

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claimant is entitled by reason of such judgment.” Culbertson v. Berryhill, 586 U.S. 53, 59

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(2019) (quoting 42 U.S.C. § 406(b)(1)(A)) (cleaned up and emphasis omitted). In a

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§ 406(b) award, courts must “respect ‘the primacy of lawful attorney-client fee

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agreements’” and assess the fee agreement for reasonableness. Crawford, 586 F.3d at 1148

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(quoting Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002)). Although § 406(b) “does not

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specify how courts should determine whether a requested fee is reasonable,” fee

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agreements are generally presumed valid unless they exceed an award of 25 percent of past

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due benefits. Id.; see also Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1038 (N.D. Cal. 2003)

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(noting courts are “deferential to the terms of contingency fee contracts in § 406(b) cases,

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accepting that the resulting de facto hourly rates may exceed those for non contingency-

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fee arrangements”). This is because “basing a reasonableness determination on a simple
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3:20-cv-01808-AGS

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hourly rate basis is inappropriate when an attorney is working pursuant to a reasonable

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contingency contract for which there runs a substantial risk of loss.” Hearn, 262 F. Supp.

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2d 1038. Yet fee awards can be reduced if representation is “substandard.” Gisbrecht, 535

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U.S. at 808. Several factors may be considered when assessing reasonableness: “(1) the

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character of the representation; (2) the results achieved; (3) whether the attorney engaged

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in dilatory conduct; (4) whether the benefits are large in comparison to the amount of time

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counsel spent on the case; and (5) the attorney’s record of hours worked and counsel’s

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regular hourly billing charge for non-contingent cases.” Avina v. Saul, No. 18-CV-1728 W

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(MSB), 2021 WL 2662309, at *1 (S.D. Cal. June 29, 2021). Counsel may also choose to

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reduce their requested fee even if the contingency agreement is valid. See Crawford, 586

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F.3d at 1151–52.

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Plaintiff agreed to a contingency fee of “25% of the past due benefits awarded upon

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reversal of any unfavorable ALJ decision for work before the court.” (ECF 26-1, at 1; 26-2,

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at 1) Because the fee is no more than 25 percent of the award, it is presumptively valid

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unless counsel’s representation was substandard. See Gisbrecht, 535 U.S. at 808. Here,

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counsel “prepared and participated in the preparation of an opening brief resulting in a joint

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motion for remand filed by the parties,” “secured a decision from [the] Court, remanding

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this matter for further administrative proceedings,” and on remand, “entitl[ed] [plaintiff] to

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receive approximately $105,974.90 in past due benefits.” (ECF 26, at 5, 6.) Counsel thus

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achieved a favorable result. And there is no evidence of dilatory conduct or undue delay.

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Counsel spent only 15.75 hours on this matter. (ECF 26, at 5; ECF 26-4, at 1–2.) This is

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well within a reasonable number of hours. See Patterson v. Apfel, 99 F. Supp. 2d 1212,

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1214 (C.D. Cal. 2000) (holding that expenditure of 33.75 hours was reasonable after

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conducting “a survey of several dozen cases”).

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With 15.75 hours of work expended for the requested $10,500 award, counsel’s

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effective hourly rate is about $667.00. (ECF 26, at 7.) Although high, this rate is not

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unreasonable. See, e.g., Triplett v. Berryhill, No. CV16-4142-DMG-SK, 2018 WL

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6588533, at *1 (C.D. Cal. Aug. 3, 2018) (approving fee of $1,027.88);Christopher R. B. v.
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3:20-cv-01808-AGS

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Colvin, No. 8:23-CV-00249-BFM, 2025 WL 26796, at *2 (C.D. Cal. Jan. 3, 2025) (noting

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that an “$876” an hour “rate is well within the rates that the Ninth Circuit and courts in this

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District have approved”). And counsel preemptively reduced his fee to 10 percent of the

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total past-due award, instead of requesting the full 25 percent that plaintiff agreed to.

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(ECF 26, at 7, 11.) The Court concludes that “the requested fees” are eminently reasonable,

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because they are both “significantly lower than the fees bargained for in the contingent-fee

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agreements” and “not excessively large in relation to the benefits achieved.” Crawford,

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586 F.3d at 1151.

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ORDER

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Counsel’s motion for attorney’s fees under 42 U.S.C. § 406(b) is GRANTED.

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Plaintiff’s counsel is awarded the amount of $10,500.00 and is ORDERED to reimburse

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plaintiff in the amount of $2,900.00 for EAJA fees previously paid.

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Dated: January 7, 2025

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___________________________

Hon. Andrew G. Schopler
United States District Judge

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