Haynes v. Commissioner of Social Security

Filing 25

ORDER granting 24 the petition for attorney's fees and authorizing Harrington to charge Haynes a net fee of $12,505.91 out of his past-due benefits award for her successful representation of him in this case.Signed by Magistrate Judge Patricia D. Barksdale on 3/13/2017. (LG)

United States District Court
Middle District of Florida
Jacksonville Division
BYRON KEITH HAYNES,
Plaintiff,
v.

NO. 3:13-cv-1149-J-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Granting Unopposed Petition
Byron Haynes’s attorney, Chantal Harrington, Esquire, has filed a petition
under 42 U.S.C. §§ 406(b) and 1383(d)(2) (incorporating § 406(b)) and 20 C.F.R.
§§ 404.1728(b) and 416.1528(b) asking for authorization to charge Haynes a net fee
of $12,505.91 for her successful representation of him in this case. Doc. 24.1 The
Commissioner of the Social Security Administration (“SSA”) does not oppose the
request. Doc. 24 at 3. Haynes’s position is unknown.
Background
In 2010, Haynes applied for disability insurance benefits and supplemental
security income. Tr. 182–88. The SSA denied his application initially and on
reconsideration, an Administrative Law Judge found no disability, and the Appeals

1Harrington

filed the petition and the memorandum of law supporting it in
separate documents. See Docs. 24, 24-1. Local Rule 3.01(a) requires a movant to
include the request for relief and legal memorandum “in a single document.”
Harrington is again directed to comply with that rule. See Kuehl v. Comm’r of Soc.
Sec., No. 3:14-cv-884-J-PBD, 2017 WL 26855, at *1 n.1 (M.D. Fla. Jan. 3, 2017)
(unpublished).

Council denied review. Tr. 1–6, 16–34, 100–03, 106–19. Lori Gaglione, Esquire,
represented him during agency proceedings. Tr. 36, 104–05.
Haynes brought this case to challenge the SSA’s denial of benefits. Doc. 1.
Haynes and Harrington entered into a standard contingent-fee agreement under
which Harrington agreed to represent him in this case, and he agreed to pay her 25
percent of any past-due benefits minus any attorney’s fees paid under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Doc. 24-3.
Harrington proceeded to represent Haynes in this case. She filed a standard
complaint, Doc. 1, and 23-page brief arguing why the Commissioner was wrong, Doc.
17. The Commissioner filed an unopposed motion to remand. Doc. 18. The Court
granted the motion, reversed the denial of benefits, and remanded the case for further
agency proceedings. Doc. 19. The Court later awarded Hayes $4151.84 in EAJA fees
based on 22.2 hours at $187.02 an hour. Docs. 21 (motion), 22 (order).
On remand, the SSA determined that Haynes was entitled to past-due benefits
and withheld 25 percent of those benefits ($24,657.75) for attorney’s fees. Doc. 24-4.
The current petition followed. Doc. 24.
Authority
Three provisions governing attorney’s fees apply: 42 U.S.C. §§ 406(a) and (b)
and the EAJA, 28 U.S.C. § 2412(d).
Section 406(a) provides an attorney may request fees for work performed
during the administrative proceedings, and the agency must allow them if the
claimant succeeds on appeal. Alternatively, an attorney may file a contingent-fee
agreement before the benefits ruling. 42 U.S.C. § 406(a)(2)(A). If the claimant
succeeds, the SSA will approve the agreement if the fees do not exceed the lesser of
25 percent of past-due benefits or $6000. 42 U.S.C. § 406(a)(2)(A)(ii), (iii); 74 Fed. Reg.
6080 (Feb. 4, 2009).
2

For representation during court proceedings, § 406(b) provides an attorney who
obtains remand may request fees, and the court, as part of its judgment, may allow
reasonable fees that do not exceed 25 percent of past-due benefits. Bergen v. Comm’r
of Soc. Sec., 454 F.3d 1273, 1275–77 (11th Cir. 2006). The fees are from—not in
addition to—the past-due benefits. 42 U.S.C. § 406(b)(1)(A). The combined fees under
§§ 406(a) and 406(b) may not exceed 25 percent of past-due benefits. Dawson v. Finch,
425 F.2d 1192, 1195 (5th Cir. 1970).
Under the EAJA, a court must order the United States to pay fees to a party
who prevails against the United States, including in a social-security case, unless the
United States’ position was substantially justified or special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). The fees are based on the attorney’s hours
and rate, capped at $125 per hour (unless a special circumstance justifies more). 28
U.S.C. § 2412(d)(2)(A). An attorney may obtain fees under both § 406(b) and the EAJA
but must refund the lesser fees to the claimant, and may do so by deducting the EAJA
fees from the § 406(b) petition. Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1274
(11th Cir. 2010).
A court must follow the framework in Gisbrecht v. Barnhart, 535 U.S. 789
(2002), when evaluating an attorney’s request for authorization to charge § 406(b)
fees based on a contingent-fee arrangement.
In Gisbrecht, the Supreme Court endorsed the use of contingent-fee
arrangements in social-security cases but cautioned that § 406(b) “calls for court
review of such arrangements as an independent check, to assure that they yield
reasonable results in particular cases.” 535 U.S. at 807. The Court explained, “Courts
that approach fee determinations by looking first to the contingent-fee agreement,
then testing it for reasonableness, have appropriately reduced the attorney’s recovery
based on the character of the representation and the results the representative
achieved.” Id. at 808. A downward adjustment “is in order,” the Court continued, if
the representation was substandard, the attorney was responsible for delay that
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increased past-due benefits, or the “benefits are large in comparison to the amount of
time counsel spent on the case,” thereby creating a windfall to the attorney. Id.
Gisbrecht held that the claimant’s attorney must show that the requested fee
“is reasonable for the services rendered.” Id. at 807. In assessing reasonableness, “the
court may require the claimant’s attorney to submit, not as a basis for satellite
litigation, but as an aid to the court’s assessment of the reasonableness of the fee
yielded by the fee agreement, a record of the hours spent representing the claimant
and a statement of the lawyer’s normal hourly billing charge for noncontingent-fee
cases.” Id. at 808.
When assessing the reasonableness of requested fees, courts have also
considered the risk of litigation loss, the difficulty of the case, the attorney’s
experience, the percentage of past-due benefits that the requested fees would
consume, the value of the case to the claimant, and the claimant’s consent to the
requested fees. Jeter v. Astrue, 622 F.3d 371, 382 (5th Cir. 2010). As to Gisbrecht’s
windfall prohibition, the Fifth Circuit has explained:
[I]f a claimant’s success on appeal can be attributed to his attorney’s
endeavors before the district court, then that attorney should reap the
benefit of his work—even if he managed to accomplish a great deal in a
small window of time. In this way, Gisbrecht’s ‘windfall’ does not
preclude attorneys from recovering what may mathematically seem like
a high fee award if the attorney’s success on appeal is of his own making.
Id. at 381.
Analysis
Harrington requests an award of $16,657.75 (25 percent of Haynes’s past-due
benefits, $24,657.75, minus the anticipated § 406(a) fees, $8000). Doc. 24 at 1–2.
After refunding the previously awarded EAJA fees ($4151.84), the net fee is
$12,505.91. Doc. 24 at 1. Harrington states $16,657.75 is only 16.8 percent of pastdue benefits and will be full payment of all attorney’s fees and costs Haynes owes.
Doc. 24-1 at 3.
4

To satisfy her burden of establishing that the requested fees are reasonable,
Harrington points to the following: the risk of loss was substantial; Haynes benefitted
from her significant experience in social-security cases (over 20 years) and obtained
substantial

past-due

benefits

(over

$98,000);

she

performed

additional,

noncompensable work after remand; she acted diligently; other courts have approved
higher fees for similar work; he consented to pay a higher percentage of past-due
benefits than requested here, and the fee does not result in a windfall to her. Doc. 241 at 7–16.
The Court finds $16,657.75 is reasonable. Although this case was not more
difficult or riskier than most (and Harrington does not claim otherwise), a
reasonableness finding is warranted based on several factors combined: the §§ 406(a)
and (b) fees together consume 25 percent of Haynes’s past-due benefits, Harrington
is an expert in social-security law, Harrington accepted the case despite the general
risks of filing a social-security case after initial agency setbacks, Harrington exhibited
diligence, and Haynes, with Harrington’s help, succeeded.
In making that finding, the Court is mindful of Gisbrecht’s instruction that a
downward adjustment is in order if the benefits are large compared to the time spent
on the case, see Gisbrecht, 535 U.S. at 808, and further mindful that Haynes’s pastdue benefits (over $98,000) were substantial, Doc. 24-1 at 7, while Harrington’s hours
on the case (22.2) were not, Doc. 21-1, making her effective hourly rate presumably
much higher than an ordinary hourly rate in the Jacksonville legal market for the
same type of work by counsel with comparable skill and experience.2 But based on all
of the above facts, the Court attributes Haynes’s success to Harrington’s efficient
endeavors in this case, making it appropriate for her to “reap the benefit of her work.”
See Jeter, 622 F.3d at 380–81 (quoted).

2Harrington

states she does not perform work on a noncontingent basis and so
“does not have a ‘normal noncontingent rate.’” Doc. 24-1 at 12–13.
5

Conclusion
Thus, the Court:
1.

grants the petition, Doc. 24; and

2.

authorizes Harrington to charge Haynes a net fee of $12,505.91
($16,657.75 minus EAJA fees of $4151.84) out of his past-due
benefits award for her successful representation of him in this
case.

Ordered in Jacksonville, Florida, on March 13, 2017.

c:

Counsel of Record

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