Culin v. Commissioner of Social Security

Filing 26

ORDER granting 25 the petition for attorney's fees and authorizing Chantal Harrington, Esquire, to charge the plaintiff $6578.50 out of his past-due benefits award for her successful representation of him in this case. Signed by Magistrate Judge Patricia D. Barksdale on 4/11/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
JEAN-PAUL CULIN,
Plaintiff,
V.

NO. 3:15-CV-128-J-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Granting Counsel’s Petition for Fee Authorization
Jean-Paul Culin’s attorney, Chantal Harrington, Esquire, has filed a petition
under 42 U.S.C. § 406(b) and 20 C.F.R. § 404.1728(b) asking for authorization to
receive $6578.50 in attorney’s fees for her successful representation of him in this
case. Doc. 25. The Commissioner of the Social Security Administration (“SSA”) does
not oppose the petition. Doc. 25 at 3. Culin’s position is unknown.
Background
Culin applied for benefits. Tr. 167–68. An Administrative Law Judge found no
disability, and the Appeals Council denied his review request. Tr. 1–4, 27–38. Jessica
Dumas, Esquire, represented him at the administrative hearing. Tr. 43.
Culin brought this case to challenge the SSA’s decision. 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. 25-3.
Harrington filed a complaint, Doc. 1, and a 25-page brief, Doc. 16. The
Commissioner filed an unopposed motion asking the Court to remand the case. Doc.

19. The Court granted the motion, reversed the denial of benefits, and remanded the
case for further administrative proceedings. Doc. 20. The Court later awarded Culin
$3959.60 in EAJA fees based on 20.9 hours at $188.60 per hour for work in 2014 and
$189.48 an hour for work in 2015 and $420.10 in costs. Docs. 22, 23. Harrington did
not receive the attorney’s fees because the United States Department of the Treasury
applied that amount to federal debts Culin owed. Doc. 25-1 at 3, 16; Doc. 25-5.
On remand, the SSA determined Culin was entitled to $50,314 in past-due
benefits. Doc. 25-4 at 3. The SSA set aside 25 percent of the award ($12,578.50) for
attorney’s fees. Doc. 25-4 at 3. Dumas petitioned for $6000 in fees for her work at the
administrative level. Doc. 25 at 2. This petition followed. Doc. 25.
Authority
Three provisions governing attorney’s fees apply: 42 U.S.C. §§ 406(a) and (b)
and the EAJA.
For representation during administrative proceedings, § 406(a) provides that
an attorney may petition for fees, and the SSA must allow them if the claimant had
been successful. In setting those fees, the SSA considers various factors. 20 C.F.R.
§ 404.1725(b). Alternatively, an attorney may file a contingent-fee agreement before
the benefits ruling. 42 U.S.C. § 406(a)(2). If the ruling favors the claimant, the SSA
generally will approve the agreement subject to the limitation that fees may not
exceed 25 percent of past-due benefits or $6000, whichever is less. 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 that an
attorney who succeeds in obtaining remand may petition for fees, and the court, as
part of its judgment, may allow reasonable fees that do not exceed 25 percent of pastdue 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).

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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 an 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). The EAJA savings provision states, “Section 206(b)(2) of the Social Security
Act[1] shall not apply … if, where the claimant’s attorney receives fees for the same
work under both [§ 406(b) and the EAJA], the claimant’s attorney refunds to the
claimant the amount of the smaller fee.” 28 U.S.C. § 2412 note, Pub. L. No. 99-80, § 3,
99 Stat. 183, 186 (Aug. 5, 1985).
The EAJA savings provision’s reference to the amount of EAJA fees an
attorney “receives” and direction to “refund … the amount of the smaller fee” indicate
the provision applies (and the amount of the EAJA award offsets requested § 406(b)
fees) only if the attorney received an EAJA award. See 28 U.S.C. § 2412 note. If the
attorney never received an EAJA award because the Treasury Department used the
EAJA award to pay the claimant’s federal debts, there is no amount of EAJA fees
“received,” no risk of double recovery prohibited by § 406(b)(2), and no amount to
“refund.” See Reeves v. Astrue, 526 F.3d 732, 737 (11th Cir. 2008) (explaining the

1Section

206(b)(2) of the Social Security Act provides, “Any attorney who charges,
demands, receives or collects for services rendered in connection with proceedings before a
court to which paragraph (1) of this subsection is applicable any amount in excess of that
allowed by the court thereunder shall be guilty of a misdemeanor.” 42 U.S.C. § 406(b)(2).

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savings provision “is not implicated … where the attorney never receives the proceeds
of an EAJA award” because the Treasury Department diverted the proceeds to pay
an outstanding debt); Conner v. Colvin, No. 13-cv-03324-KAW, 2016 WL 5673297, at
*3 (N.D. Cal. Oct. 3, 2016) (unpublished) (holding claimant’s attorney was not
required to deduct EAJA award from requested § 406(b) fees because “counsel
apparently did not receive that amount because the Department of [the] Treasury
determined that Plaintiff owed an outstanding debt”; citing cases).
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 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.
The Court in Gisbrecht held that the claimant’s attorney has the burden of
showing that the requested fee “is reasonable for the services rendered.” Id. at 807.
And 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.

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After Gisbrecht, to assess 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 fee. Jeter v. Astrue, 622 F.3d 371, 382 (5th Cir. 2010). On 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 arrives at $6578.50 as follows: $12,578.50 (25 percent of Culin’s
past-due benefits of $50,314), minus $6000 (the § 406(a) fees Dumas requested). Doc.
25 at 2. 2
To satisfy her burden of establishing that the requested fees are reasonable,
Harrington observes $6578.50 is authorized by the contract between her and Culin
and within the statutory limit and contends the risk of loss was substantial, he
benefited from her significant experience in social-security cases (over 20 years), he
obtained substantial past-due benefits ($50,314), she acted diligently, other courts
2Harrington

asserts she does not have to deduct or refund the EAJA award because
she did not receive it. Doc. 25 at 2. The EAJA award does not affect what Harrington may
receive under § 406(b) because she did not receive the EAJA award. It is unclear whether
Harrington received the $420.10 in costs awarded under the EAJA. Harrington does not
mention the costs in the petition, see Doc. 25 at 2; Doc. 25-1 at 3, 16; the notice she provides
showing application of the EAJA award to Culin’s federal debts shows only the attorney’s
fees (totaling $3959.60) were diverted, see Doc. 25-5 at 1–2; and it is unclear whether Culin
or Harrington paid the costs. Nevertheless, her potential receipt of costs for filing and service
under the EAJA would not result in a double recovery prohibited by § 406(b)(2) because she
does not request costs under § 406(b). Both § 406(b)(2) and the EAJA savings provision
address attorney’s fees. Because § 406(b)(2) is not implicated, the EAJA savings provision
does not apply.

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have approved higher fees for similar work, and the fee does not result in a windfall
to her. Doc. 25-1 at 7–16.
The Court finds $6578.50 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 no more than 25 percent of Culin’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 Culin succeeded with Harrington’s help.
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 Culin’s past-due
benefits were substantial ($50,314), Doc. 25-4 at 3, while Harrington’s hours on the
case were not (20.9 hours), Doc. 22 at 2, 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 Culin’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. 25; and

3Harrington

states she does not perform work on a non-contingent basis and so “does
not have a ‘noncontingent hourly rate.’” Doc. 25-1 at 8, 12.

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2.

authorizes Harrington to charge Culin $6578.50 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 April 11, 2017.

c:

Counsel of record

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