Kreischer v. Berryhill

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KRISTY ANN KREISCHER, Case No.: 18-CV-1034 W (RNB) 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY’S FEES UNDER 42 U.S.C. § 406 (b) [DOC. 25] 14 ANDREW SAUL, Commissioner of Social Security, [15] Defendant. [18] 19 Pending before the Court is Plaintiff’s counsel Cyrus Safa’s (“Counsel”) motion 20 for attorney’s fees under 42 U.S.C. §406 (b). Counsel requests an order granting him 21 $18,000 in fees, with a credit to Plaintiff for the EAJA fees previously paid in the amount 22 of $2,969.19. On August 13, 2020, Defendant filed a response taking no position on the 23 request, but providing a brief analysis of the fee requested. (See Def’s Response [Doc. 24 26].) Plaintiff was served with the motion and notified that any response had to be filed 25 within 14 days. (Notice of Mot. [Doc. 25] 2:1–13.) To date, Plaintiff has not filed a 26 response to Counsel’s attorney’s fee request. 1 The Court decides the matter on the papers submitted, and without oral argument. 2 See Civ.L.R. 7.1.d. For the following reasons, the Court GRANTS the motion [Doc. 25]. [3] 4 I. DISCUSSION 5 Section 406(b) provides, in relevant part: 6 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 [7] determine and allow as part of its judgment a reasonable fee for such 8 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 . . . . [10] Id. “In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988 , 11 the fee is paid by the claimant out of the past-due benefits awarded; the losing party is not 12 responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir.2009) (en 13 banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 , (2002)). “The goal of fee awards 14 under section 460(b) is to provide adequate incentive to represent claimants while 15 ensuring that the usually meager disability benefits received are not greatly depleted.” 16 Thomas v. Colvin, 2015 WL 1529331 , *1 (E.D. Cal. 2015) (citing Cotter v. Bowen, 879 17 F.2d 359, 365 (8th Cir.1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807 ). 18 In evaluating an attorney’s fee request, courts “must respect ‘the primacy of lawful 19 attorney-client fee arrangements,’ … ‘looking first to the contingent-fee agreement, then 20 testing for reasonableness.’” Crawford, 586 F.3d at 1148 (quoting Gilbrecht, 535 U.S. at 21 793, 808). Factors courts may consider in evaluating the reasonableness of the attorney 22 fee award are: (1) the character of the representation; (2) the results achieved; (3) whether 23 the attorney engaged in dilatory conduct; (4) whether the benefits are large in comparison 24 to the amount of time counsel spent on the case; and (5) the attorney’s record of hours 25 worked and counsel's regular hourly billing charge for non-contingent cases. Thomas, [26] 2015 WL 1529331 , *2 (citing Crawford, 586 F.3d at 1148 ). 1 Here, Counsel was successful in obtaining a favorable decision for Plaintiff in this 2 || Court, which granted Plaintiff's summary-judgment motion, denied Defendant’s 3 ||summary-judgment motion and remanded the case to the Social Security Administration 4 || for further proceedings. (Order [Doc. 22].) On remand, the Commissioner granted 5 || Plaintiffs application for benefits, entitling her to receive $84,974.00 in retroactive 6 benefits. (Safa Decl. [Doc. 24] 13:16—-19, citing Ex. 3.) Thus, no reduction is warranted 7 || due to a substandard performance, nor is there any basis to reduce fees based on dilatory 8 ||conduct, as there is no indication Counsel caused any excessive delay. Additionally, the 9 Court has reviewed the amount of time spent on this matter, Counsel’s experience, and 10 United States Consumer Law Attorney Fee Survey Report 2017-2018. (See Safa 11 || Decl., § 8, and Ex. 6 [Doc. 25-6].) Considering all these factors, the Court finds the fee 12 reasonable under the contract, the services provided, and the results achieved. [13] 14 ||II. CONCLUSION & ORDER 15 For the reasons stated above, the Court GRANTS Counsel’s motion for attorney’s 16 [Doc. 25] and ORDERS as follows: 17 1. Counsel is AWARDED $18,000.00 in attorney’s fees. 18 2. Counsel shall reimburse Plaintiff Kristy Ann Kreischer $2,969.19 for the 19 EAJA fees previously paid. 20 IT IS SO ORDERED. 21 Dated: September 21, 2020 \ 22 ihe Lon 23 Hn. 1 omas J. Whelan United States District Judge