Mowry v. Kilolo Kijakazi

[6] 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA [9] JESSICA M. MOWRY, 10 Case No. 19-cv-02972-RS Plaintiff, [11] v. ORDER GRANTING MOTION FOR 12 ATTORNEY FEES KILOLO KIJAKAZI, [13] Defendant. [15] 16 I. INTRODUCTION 17 Plaintiff’s counsel Brian Barboza moves to recover fees under 42 U.S.C. § 406 (b). Dkt. 24. 18 Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, 19 and the hearing set for January 6, 2022 is vacated. For the reasons set forth below, the fees 20 requested are reasonable, and the motion is granted. 21 II. BACKGROUND 22 Plaintiff Jessica Mowry applied for social security disability benefits in 2015. The Social 23 Security Administration (“SSA”) denied the application initially and again on reconsideration. 24 Mowry then appeared in front of an Administrative Law Judge (“ALJ”) in 2017, who again denied 25 benefits. The Appeals Council declined to review the ALJ’s decision. After these denials, Mowry 26 sought review in this Court. In December 2019, Mowry was found disabled, with an onset date of 27 March 5, 2015. The case was remanded for payment of benefits. Dkt. 14. 1 pay Mowry attorney fees in the amount of $6,900.50 under the Equal Access to Justice Act 2 (“EAJA”). Dkt. 23. That amount was paid to Barboza, pursuant to the agreement between himself 3 and Mowry. Barboza now moves to recover fees pursuant to pursuant to 42 U.S.C. § 406 (b). In 4 response to Barboza’s motion, the government states that it “was not a party to the contingent-fee 5 agreement between Counsel and Plaintiff and therefore is not in a position to either assent or 6 object” to the motion. See Defendant’s Response to Plaintiff’s Counsel’s Motion for Attorney 7 Fees, Dkt. 27, at 2. The government nevertheless offers its own analysis of the motion in its role 8 “resembling that of a trustee for Plaintiff.” Id. at 3 (internal quotation marks and citation omitted). 9 III. LEGAL STANDARD 10 Section 406(b) of the Social Security Act provides that “[w]henever a court renders a 11 judgment favorable to a claimant . . . who was represented before the court by an attorney, the 12 court may determine and allow as part of its judgment a reasonable fee for such representation, not 13 in excess of 25 percent of the total of the past-due benefits.” 42 U.S.C. § 406 (b)(1)(A). This fee 14 derives from funds withheld from the past-due benefits payment by the SSA. 15 The Supreme Court has instructed courts to utilize attorney-client fee agreements as a 16 baseline when considering a fee motion under 42 U.S.C. § 406 (b). Gisbrecht v. Barnhart, 535 U.S. 17 789, 807–08 (2002). Courts must review such fee agreements “as an independent check, to assure 18 that they yield reasonable results in particular cases.” Id. at 807. Specifically, the attorney’s 19 recovery should be analyzed “based on the character of the representation and the results the 20 representative achieved.” Id. at 808. The burden is on the attorney to “show that the fee sought is 21 reasonable for the services rendered.” Id. at 807. 22 Gisbrecht identifies at least three examples of when a court-imposed fee reduction may be 23 warranted. Id. at 807–08; see also Crawford v. Astrue, 586 F.3d 1142 , 1151–52 (9th Cir. 2009) (en 24 banc). First, the fee may be reduced if the attorney’s representation is substandard. Gisbrecht, 535 25 U.S. at 808. Second, if “the attorney is responsible for delay . . . a reduction is in order so that the 26 attorney will not profit from the accumulation of benefits during the pendency of the case in 27 court.” Id. Third, if “the benefits are large in comparison to the amount of time counsel spent on 1 the case, a downward adjustment is similarly in order.” Id. Gisbrecht authorized courts to consider 2 evidence of the hours incurred and the hourly rates normally charged in non-contingent matters 3 “as an aid to the court’s assessment of the reasonableness of the fee yielded by the fee agreement,” 4 but cautioned that such an inquiry should not rise to the level of “satellite litigation” over 5 fees. Id. When fee awards are made under both section 406(b) and EAJA, the claimant's attorney 6 must “refun[d] to the claimant the amount of the smaller fee.” Id. at 796; see also 28 U.S.C § 7 406(b)(1)(A). 8 IV. DISCUSSION 9 Under the terms of the agreement between Mowry and Barboza, Barboza may receive a fee 10 up to 25 percent of Mowry’s past-due benefits, i.e., up to $15,919.25. The instant motion requests 11 fees equal to the full 25 percent, which would require Barboza to return the $6,900.50 already 12 distributed to Barboza under the EAJA. This request must be evaluated independently from the 13 contract for its reasonableness. Gisbrecht, 535 U.S. at 807. 14 There is no evidence in the record demonstrating Barboza’s representation was 15 substandard. Nor is there any indication that he caused any undue delay. Thus, whether the 16 requested fees are reasonable turns on whether the request is large in comparison to the amount of 17 time he spent on the case. Barboza states he spent 33.62 hours on this case before this Court, and 18 thus the effective hourly fee he requests is $473.50. This rate is higher than Barboza’s customary 19 hourly rate of $350.00 per hour. In this case, however, Barboza was “working pursuant to a [] 20 contingency contract for which there [was] a substantial risk of loss.” Hearn v. Barnhart, 262 F. 21 Supp. 2d 1033, 1037 (N.D. Cal. 2003). Further, the effective hourly rate requested by Barboza is 22 within the range of other approved fee requests. Indeed, there are cases from this District and 23 others in which much higher hourly fees were found reasonable. See, e.g., Harrell v. Berryhill, No. 24 16-cv-02428, 2018 WL 4616735 , at *4 (N.D. Cal. Sept. 24, 2018) (finding $1,213.83 hourly rate 25 reasonable); McCullough v. Berryhill, No. 16-cv-00625, 2018 WL 6002324 , at *2 (N.D. Cal. Nov. 26 15, 2018) (finding $874.72 hourly rate reasonable); Perl v. Comm’r of Soc. Sec., No. 16-cv-00196, [27] 2018 WL 4042862 , at *2 (E.D. Cal. Aug. 23, 2018) (finding $1,075.23 hourly rate reasonable). 1 Thus, it is reasonable for Barboza to be paid $15,919.25, provided he refunds the $6,900.50 in 2 || EAJA fees to Mowry. 3 V. CONCLUSION 4 For the reasons set forth above, the motion for attorney fees is granted. Barboza shall 5 collect $15,919.25 in attorney fees, and must refund the EAJA award, in the amount of $6,900.50, 6 || to Mowry. [4] 8 IT IS SO ORDERED. [9] 10 Dated: December 14, 2021 [11] RICHARD SEEBORG 12 Chief United States District Judge [16] € = 17 [6] Zz 18 [27] 98 ORDER GRANTING MOTION FOR ATTORNEY FEES CASE No. 19-cv-02972-RS