Kuehl v. Commissioner of Social Security

Filing 30

ORDER granting 29 Chantal Harrington, Esquire's unopposed petition for authorization of attorney's fees and authorizing her to charge Joseph Kuehl $6296.26 in § 406(b) fees. Signed by Magistrate Judge Patricia D. Barksdale on 1/3/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
JOSEPH KUEHL,
Plaintiff,
V.

NO. 3:14-CV-884-J-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Granting Counsel’s Petition for Fee Authorization
Joseph Kuehl’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 Kuehl $6296.26
for her successful representation of him in this case. Doc. 29. 1 The Commissioner of
the Social Security Administration (“SSA”) does not oppose the request. Doc. 29 at 3.
Kuehl’s position is unknown.
Background
Kuehl applied for disability-insurance and supplemental-security-income
benefits. Tr. 176−84. An Administrative Law Judge found he was not disabled, and
the Appeals Council denied his review request. Tr. 1−6, 9−27. Jessica Dumas,
Esquire, represented him during the administrative proceedings. Tr. 12, 72; Doc. 29
at 2.

1Harrington

filed the petition and the memorandum of law supporting it in
separate documents. See Docs. 29, 29-1. Local Rule 3.01(a) requires a movant to
include the request for relief and legal memorandum “in a single document.” The
Court expects future filings to comply with the Local Rules.

Kuehl brought this case to challenge the denial of benefits. Doc. 1. He and
Harrington entered into a standard contingent-fee agreement under which she
agreed to represent him in this case, and he agreed to pay her 25 percent of any pastdue benefits minus any attorney’s fees paid under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). Doc. 29-3.
Kuehl filed a complaint, Doc. 1, followed by a 26-page brief raising three issues,
Doc. 17. The Commissioner responded by filing an unopposed motion asking the
Court to remand the case. Doc. 20. The Court granted the motion, reversed the denial
of benefits, and remanded the case for further administrative proceedings. Doc. 21.
The Court later awarded Kuehl $4022.22 in EAJA fees based on 21.4 hours at
$187.02 an hour. Docs. 23, 24. 2
On remand, the agency determined Kuehl was entitled to $65,273.90 in pastdue benefits. Doc. 29-4 at 2. Because the SSA apparently issued an incorrect Notice
of Award, he requested, and the Court granted, permission to file a petition for
approval of attorney’s fees within 30 days after receipt of a corrected Notice of Award
by his counsel before the SSA or this Court, whichever was earlier. Docs. 26, 27. The
SSA sent a revised Notice of Award dated October 26, 2016, in which it explained it
should have set aside 25 percent of the award ($16,318.48) for attorney’s fees. Doc.
29-4 at 2. Harrington filed the current petition on November 18, 2016. Doc. 29.

2Kuehl

actually requested $4002.22 in EAJA fees, and the Court granted the
request as to that amount. See Doc. 23 at 1–2; Doc. 24 at 1, 4–5. Due to a typographical
error, however, the docket text accompanying the Court’s order indicated that Kuehl
was to receive $4022.22 in EAJA fees—a difference of $20—and the Clerk of Court
entered judgment in that amount. See Doc. 25 at 1. The Commissioner did not object
to the erroneous judgment. Because Harrington’s petition indicates receipt of the
(incorrect) higher amount, see Doc. 29 at 2, deducting the EAJA fee actually obtained
from any award of § 406(b) fees, as she suggests, is warranted.
2

Authority
Three provisions governing attorney’s fees apply: 42 U.S.C. §§ 406(a) and (b)
and the Equal Access to Justice Act (“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 succeeded 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 agency 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).
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). A § 406(b) motion must be filed “no later than
thirty (30) days after the date of the Social Security letter sent to the plaintiff’s
counsel of record at the conclusion of the Agency’s past-due benefit calculation stating
the amount withheld for attorney’s fees.” See In re: Procedures for Applying for
Attorney’s Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2) (M.D. Fla. Nov. 14, 2012).
Under the EAJA, a court must order the United States to pay fees to a party
who prevails against the United States, unless the United States’ position was
substantially justified or a special circumstance makes 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
an hour (unless a special circumstance or cost-of-living adjustment 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
3

fees from the § 406(b) amount. 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 § 406(b) fees based on a contingentfee arrangement.
In Gisbrecht, the Supreme Court endorsed the use of contingent-fee
arrangements in social-security cases but cautioned § 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 led
to an accumulation of benefits while the case was pending, 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 the claimant’s attorney must show 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 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 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,
4

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
As an initial matter, the petition, filed on November 18, 2016, Doc. 29, is
timely. Although the SSA apparently had sent a Notice of Award several months
earlier, see Doc. 26, the Court granted an extension of time allowing Harrington to
file a petition for approval of attorney’s fees within 30 days after receipt of the
corrected Notice of Award by his counsel before the SSA or this Court, whichever was
earlier, Doc. 27. The SSA sent a revised Notice of Award dated October 26, 2016. Doc.
29-4 at 1. Harrington filed her petition within 30 days of that date. Doc. 29.
Harrington arrives at $6296.26 as follows: $16,318.48 (25 percent of Kuehl’s
past-due benefits of $65,273.90), minus $4022.22 (the previously awarded EAJA
fees), minus $6000 (the amount of § 406(a) fees to Dumas). Doc. 29 at 1.
To satisfy her burden of establishing $6296.26 is reasonable, Harrington
points to the following: $6296.26 is authorized by the contract between her and Kuehl
and within the statutory limits; the risk of loss was substantial; he benefited from
her significant experience in social-security cases (over 20 years) and obtained
substantial past-due benefits ($65,273.90); she acted diligently; other courts have
approved higher fees for similar work; the fee does not result in a windfall to her; and
he consented to pay the requested fee. Doc. 29-1 at 7–16.

5

The Court finds $6296.26 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 less than 25 percent of Kuehl’s past-due benefits,
Harrington is an expert in social-security law, Harrington accepted the case despite
the general risks of filing social-security cases after initial agency setbacks,
Harrington exhibited diligence, and Kuehl, with Harrington’s help, succeeded.
In making that finding, the Court is mindful of Gisbrecht’s instruction that a
downward adjustment is warranted if the benefits are large compared to the time
spent on the case, see Gisbrecht, 535 U.S. at 808, and further mindful that Kuehl’s
past-due benefits were substantial ($65,273.90), Doc. 29-4 at 2, while Harrington’s
hours on the case were not (21.4 hours), Doc. 29-1 at 3, 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. 3
But based on the above facts, the Court attributes Kuehl’s success in large part to
Harrington’s efficient endeavors in this case, making it appropriate for her to “reap
the benefit of h[er] work.” See Jeter, 622 F.3d at 380–81 (quoted).
Conclusion
The Court:
1.

grants the petition, Doc. 29; and

3Harrington

states she does not perform work on a non-contingent basis and
so “does not have a ‘noncontingent hourly rate.’” Doc. 29-1 at 8, 13.
6

2.

authorizes Harrington to charge Kuehl $6296.26 in § 406(b) fees
out of his past-due benefits award for her successful
representation of him in this case.

Ordered in Jacksonville, Florida, on January 3, 2017.

c:

Counsel of record

7