The opinion
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4 IN THE UNITED STATES DISTRICT COURT
5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
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7 SHAWN HUEY, Case No. 21-cv-03981-MMC
8 Plaintiff,
ORDER GRANTING PLAINTIFF'S
9 v. "PETITION FOR 406(b) FEES"
10 MARTIN O'MALLEY, Re: Dkt. No. 27
11 Commissioner of Social Security,
12 Defendant.
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14 Before the Court is plaintiff's attorney's "Petition for 406(b) Fees," filed August 23,
15 2024, seeking an award of $40,714.25, as attorney's fees for her representation of
16 plaintiff in the above-titled action. (ECF No. 27).1 The Commissioner of Social Security
17 has filed a response in which he "neither supports nor opposes counsel's request for
18 attorney's fees." (see Response, filed September 6, 2024, at 1:9-10). Plaintiff, although
19 served with the moving papers (see Decl. of Katherine Siegfried ("Decl."), filed August
20 23, 2024, ¶ 9) has not filed a response. The Court, having read and considered the
21 moving and responsive papers, hereby rules as follows:
22 Pursuant to 42 U.S.C. § 406, "[w]henever a court renders a judgment favorable to
23 a claimant … who was represented before the court by an attorney, the court may
24 determine and allow … a reasonable fee for such representation, not in excess of 25
25 percent of the total of the past-due benefits to which the claimant is entitled." 42 U.S.C. §
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1 The above sum would equate to a net fee of $29,532.25 after an offset in the
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amount of $11,182.00, comprising fees counsel obtained under the Equal Access to
1 406(b). Although § 406 "does not displace contingent-fee agreements," said statute
2 "calls for court review of such arrangements as an independent check, to assure that they
3 yield reasonable results in particular cases," and, in conducting such review, "the district
4 court [may] consider the lodestar calculation, but only as an aid in assessing the
5 reasonableness of the fee." Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002); Crawford v.
6 Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (emphasis in original).
7 Counsel for the plaintiff "bears the burden of establishing that the fee sought is
8 reasonable," and, although there is no "definitive list of factors that should be considered
9 in determining whether a fee is reasonable," a court "may properly reduce the fee" where
10 it finds (1) "substandard performance," (2) "delay," or (3) "benefits that are not in
11 proportion to the time spent on the case." Crawford, 586 F.3d at 1148, 1151.
12 Here, as set forth below, the Court finds counsel has satisfied her burden of
13 showing the requested fees are reasonable. There is nothing in the record to suggest
14 counsel's representation of plaintiff was in any manner inadequate, that she caused any
15 delay, or that the requested fees are excessively large in relation to the benefits
16 achieved.
17 Plaintiff's attorney states she spent 52.5 hours litigating the case in federal court
18 (see Ex. 4), which results in an effective hourly rate of approximately $775. Although
19 such rate exceeds counsel's "non-contingency-based hourly rate" of $500 for appellate
20 cases unrelated to Social Security (see Decl. ¶ 2), the lodestar method, as the Ninth
21 Circuit has observed, "under-compensates attorneys for the risk they assume in
22 representing [Social Security disability insurance] claimants and ordinarily produces
23 remarkably smaller fees than would be produced by starting with the contingent-fee
24 agreement." Crawford, 586 F.3d at 1149.
25 In recognition thereof, "district courts generally have been deferential to the terms
26 of contingency fee contracts in § 406(b) cases, accepting that the resulting de facto
27 hourly rates may exceed those for non-contingency fee arrangements." See Hearn v.
1 No. 1:19-cv-00456-SKO, 2022 U.S. Dist. LEXIS 65272 (E.D. Cal. Apr. 7, 2022) (granting
2 award equal to 25% of past-due benefits, resulting in effective hourly rate of $965, where
3 || non-contingency hourly rate for counsel in same geographical area and with comparable
4 experience was $175-$300); Zuckswert v. Saul, No. 2:17-cv-0779 AC, 2019 U.S. Dist.
5 || LEXIS 118430 (E.D. Cal. July 16, 2019) (granting award equal to 25% of past-due
6 || benefits, resulting in effective hourly rate $768, where counsel's "typical hourly rate [was]
7 || $400-$450 in non-contingency cases"); Brown v. Berryhill, No. 1:14-cv-01288-DAD-SKO,
8 || 2018 U.S. Dist. LEXIS 154957 (E.D. Cal. Sept. 11, 2018) (granting award equal to 25%
9 of plaintiff's past-due benefits, resulting in effective hourly rate of $611, where counsel's
10 || non-contingency hourly rate was $350).
11 Accordingly, the "Petition for 406(b) Fees” is hereby GRANTED, and the Court
12 || awards attorney's fees in the amount of $40,714.25 to be paid out of plaintiff's past-due
5 13 benefits. Plaintiff's attorney shall reimburse the EAJA fee of $11,182.00 to plaintiff.
IT IS SO ORDERED.
16 MW 2
17 Dated: November 7, 2024
United Statas District Judge
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