Alli v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALICIA A.,1
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Case No. 3:21-cv-00087-TMB
ORDER RE ATTORNEY FEES
PURSUANT TO 42 U.S.C. § 406(b)(1)
Alicia A. (“Plaintiff”), by her attorney, Kevin Kerr (“Counsel”), moves the
Court for authorization of attorney fees pursuant to 42 U.S. §406(b) in the amount
of $15,607.25, for representation of Plaintiff before this Court. 	Counsel filed his
motion for § 406(b) attorney fees with the Court on August 19, 2022.2 	Defendant
Kilolo Kijakazi (the “Commissioner”) has not responded in a timely manner to
Plaintiff’s motion.3
1 Plaintiff’s name is partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States. 	See Memorandum, Committee on Court Administration and
Case 	Management 	of 	the 	Judicial 	Conference 	of 	the 	United 	States 	(May 	1, 	2018),
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Docket 26.
3 Plaintiff asserts that the “parties have conferred regarding this § 406(b) fee matter” and that the
Commissioner has “given substantive consideration to the merits of Plaintiff’s request for 406(b)
fees, as set forth above, to be paid out of the claimant’s past-due benefits,” but the Commissioner
Case 3:21-cv-00087-TMB Document 27 Filed 09/28/22 Page 1 of 6

Case No. 3:21-cv-00087-TMB
Order
Page 2 of 6
I. 	BACKGROUND
On 	or 	about 	April 	30, 	2019, 	Plaintiff 	protectively 	filed 	applications 	for
disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act.4 On April 30, 2020, the ALJ issued an unfavorable
ruling and on September 8, 2020, the Appeals Council denied review.5 	After the
Appeals Council granted Plaintiff additional time to file a civil action,6 	Plaintiff
appealed the Commissioner’s final decision to this Court.7 	Pursuant to the terms
of her contingent fee agreement, Plaintiff agreed to pay Counsel 25 percent of
past-due benefits in the event her social security appeal was successful.8 On April
29, 2022, this Court remanded Plaintiff’s case for the immediate payment of
benefits.9 	On July 2, 2022, the Social Security Administration issued a Notice of
Award and withheld 25 percent of Plaintiff’s past-due benefits, in the amount
$15,607.25.10 On August 9, 2022, the Court granted Plaintiff’s motion for attorney
would “make the Commissioner’s position known by separate filing.” Docket 26 at 1.
4 A.R. 184, 186.
5 A.R. 8–12, 36–44.
6 A.R. 1.
7 Docket 1.
8 Docket 26-1.
9 Docket 21 (Order). Judgment was entered on June 1, 2022. Docket 22.
10 Docket 26-2 at 1–6.
Case 3:21-cv-00087-TMB Document 27 Filed 09/28/22 Page 2 of 6

Case No. 3:21-cv-00087-TMB
Order
Page 3 of 6
fees pursuant to the Equal Access to Justice Act (“EAJA”),11 subject to offset
pursuant to the Treasury Offset Program as set forth in Astrue v. Ratliff,12 in the
amount of $2,514.26.13
II. 	ANALYSIS
Under 42 U.S.C. § 406(b), the Court may award a claimant’s attorney for a
reasonable fee not in excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled for that attorney’s representation before the Court.14
The attorney fee award under § 406(b) is not paid by the losing party, instead, it is
paid by the claimant out of the past-due benefits award. 	The claimant’s attorney
bears the burden of demonstrating the requested fee is reasonable.15 Additionally,
“Congress harmonized fees payable by the Government under EAJA with fees
payable under § 406(b) out of the claimant’s past-due Social Security benefits in
this manner: 	Fee 	awards 	may be made under both prescriptions, but the
claimant’s attorney must refund to the claimant the amount of the smaller fee.”16
11 28 U.S.C. § 2412.
12 560 U.S. 586.
13 Docket 25.
14 42 U.S.C. § 406(b)(1)(A).
15 Gisbrecht v. Barnhart, 535 U.S. 798, 802, 808 (2002).
16 Gisbrecht, 535 U.S. at 796 (internal quotations and citations omitted).
Case 3:21-cv-00087-TMB Document 27 Filed 09/28/22 Page 3 of 6

Case No. 3:21-cv-00087-TMB
Order
Page 4 of 6
Gisbrecht v. Barnhart provided a framework to district courts for evaluating
contingent fee requests under § 406(b). 	First, the Court looks to the terms of the
contingent-fee agreement, checking to see if it is consistent with the fee request
and within the statutory maximum of 25 percent of past-due benefits. 	The Court
then tests for reasonableness “based on the character of the representation and
the results the representative achieved.”17 The Court will reduce the attorney’s fee
for substandard representation, delay of the case, or if the requested fee would
“result in a windfall.”18
Here, Counsel met his burden of demonstrating his requested § 406(b) fees
are reasonable. 	Pursuant to the contingent fee agreement with Counsel, Plaintiff
agreed to pay 25 percent of her past-due benefits for Counsel’s successful
representation of Plaintiff’s case before this Court.19 Moreover, Counsel’s request
for $15,607.25 is 25 percent of Plaintiff’s past-due benefits20 and reflects the
amount withheld by the Social Security Administration for the purpose of paying
attorney’s fees.21
17 Id. at 808.
18 Crawford v. Astrue, 586 F.3d 1142, 1148, 1151 (9th Cir. 2009), citing Gisbrecht 535 U.S. at 808.
19 Docket 26-1.
20 Plaintiff’s total past-due benefits subject to award under 42 U.S.C. § 406(b) amounts to
$62,429.00. Docket 26-2 at 3.
21 Docket 26-2 at 3. 	The Court notes that there is no evidence in the record of “fraud or
overreaching.” See Crawford, 586 F.3d at 1152.
Case 3:21-cv-00087-TMB Document 27 Filed 09/28/22 Page 4 of 6

Case No. 3:21-cv-00087-TMB
Order
Page 5 of 6
Next, 	the 	Court 	finds 	no 	reduction 	in 	fees 	is 	necessary. 	Counsel
successfully represented Plaintiff before this Court, resulting in Plaintiff receiving
past-due benefits.22 There is no evidence that Counsel caused excessive delay.23
Moreover, Counsel’s hours spent in this case are not unreasonable.24 	Counsel
submitted time records in support of his 11.50 total attorney hours.25 	The parties
stipulated to the EAJA award in this case, based on the same 11.50 attorney hours
expended by Counsel, and the Court awarded the EAJA fees.26 	Finally, the
requested fee does not constitute a windfall. Given the risk undertaken by Counsel
and lengthy administrative and court process involved,27 Counsel’s hourly rate of
$1,357.15 is reasonable in this case.28
22 See Dockets 21, 22, 25.
23 Counsel filed pleadings in a timely manner and did not request any extensions. 	See Civil
Docket for 3:21-cv-00087-TMB.
24 Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (The amount of time
an attorney reasonably spends on a specific case “will always depend on case-specific factors
including . . . the complexity of the legal issues, the procedural history, the size of the record, and
when counsel was retained”).
25 Docket 26-3.
26 Dockets 23, 25.
27 Crawford, 586 F.3d at 1152 (“The attorneys assumed significant risk in accepting [the three
consolidated appeals at issue], including the risk that no benefits would be awarded or that there
would be a long court or administrative delay in resolving the cases”).
28 See Docket 26.
Case 3:21-cv-00087-TMB Document 27 Filed 09/28/22 Page 5 of 6

Case No. 3:21-cv-00087-TMB
Order
Page 6 of 6
III. 	ORDER
For the foregoing reasons, Counsel’s motion for § 406(b) attorney’s fee is
granted. 	IT IS HEREBY ORDERED that the Court authorizes an attorney’s fee
pursuant to 42 U.S.C. § 406(b) in the amount of Fifteen Thousand Six Hundred
Seven and 25/100 Dollars ($15,607.25). 	The Social Security Administration is
directed to send Counsel the net balance of $15,607.25, minus any applicable
processing fees allowable by statute. 	Upon receipt of payment of the § 406(b)
fees, Counsel shall refund Plaintiff the EAJA fee in the amount of Two Thousand
Five Hundred Fourteen and 26/100 Dollars ($2,514.26). 	If the EAJA award is
subject to offset pursuant to the Treasury Offset Program, as discussed in Astrue
v. Ratliff,29 Counsel shall refund the remaining balance to Plaintiff.
DATED this 28th day of September, 2022.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
29 560 U.S. 586 (2010).
Case 3:21-cv-00087-TMB Document 27 Filed 09/28/22 Page 6 of 6