Hartley v. Commissioner of Social Security

Filing 23

ORDER granting 20 Erik Berger's unopposed motion for fee authorization; authorizing Mr. Berger to charge Keith Hartley $6611.99 from past-due benefits for Mr. Berger's successful representation of him in this action; and directing the clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 7/22/2020. (ASL)

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

NO. 3:16-cv-643-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Granting Motion for Fee Authorization
Keith Hartley’s attorney, Erik Berger, Esquire, moves under 42 U.S.C. § 406(b)
and 20 C.F.R. § 404.1728(b) for authorization to charge Hartley $6611.99 for Berger’s
successful representation of him in this action. Doc. 20. The Commissioner of Social
Security has no opposition. Doc. 22.
Background
Hartley applied for benefits. Tr. 23. An Administrative Law Judge found him
not disabled, and the Appeals Council denied his request for review.
Hartley brought this action to challenge the denial. Doc. 1. He and Berger
entered into a contingent-fee agreement under which Berger agreed to represent him
in this action, and he agreed to pay Berger 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. 17.
Berger filed a complaint, Doc. 1, and a 22-page brief arguing why the
Commissioner was wrong, Doc. 11, and the Commissioner filed a response arguing
otherwise. Doc. 13. The Court reversed and remanded for further agency proceedings.

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Doc. 15. The Court later granted Hartley’s request under the EAJA for $400 in costs
and $4677.75 in attorney’s fees based on 24.3 hours at $192.50 an hour. Doc. 18.
On remand, Hartley obtained $24,554.60 in past-due Title II benefits and
$1893.36 in past-due Title XVI benefits, and the agency set aside a portion of those
amounts for attorney’s fees. Docs. 20, 20-1, 20-1.
Authority
For representation during court proceedings, 42 U.S.C. § 406(b) provides that
an attorney who obtains remand may petition for 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 the past-due benefits. 42 U.S.C. § 406(b)(1)(A). “The 25% cap applies
only to fees for representation before the court, not the agency.” Culbertson v.
Berryhill, 139 S. Ct. 517, 522 (2019).
Separately, under the EAJA, 28 U.S.C. § 2412(d), 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) motion. Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir.
2010).
In evaluating an attorney’s request for authorization to charge § 406(b) fees
based on a contingent-fee arrangement, a court must follow the framework in
Gisbrecht v. Barnhart, 535 U.S. 789 (2002). A court reversibly errs by instead
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employing the lodestar method. Gossett v. Soc. Sec. Admin., Comm’r, No. 19-13922,
2020 WL 2043429, at *3 (11th Cir. Apr. 28, 2020) (unpublished).
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.
Gisbrecht requires a claimant’s attorney to 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.
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).

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Analysis
Berger arrives at his request for authorization to charge $6611.99 in § 406(b)
fees as follows: $6138.65 (25 percent of Hartley’s Title II past-due benefits of
$24,554.60), plus $473.34 (25 percent of Hartley’s Title XVI past-due benefits of
$1893.36). Doc. 20.
To satisfy his burden of establishing that the requested fees are reasonable,
Berger observes the amount does not exceed 25 percent of the past-due benefits and
the amount is authorized by the contingent-fee agreement. Doc. 20 at 6. He contends
he provided “extraordinary representation” to Hartley, representing him for more
than five years and persisting on his behalf, and the amount “is not so large in
comparison to the time expended[.]” Doc. 20 at 6.
The Court finds that, based on those circumstances, Berger’s requested fees
are reasonable.
Conclusion
Thus, the Court:
1.

grants the motion, Doc. 20;

2.

authorizes Berger to charge Hartley $6611.99 from past-due
benefits for Berger’s successful representation of him in this
action; * and

3.

directs the clerk to enter judgment accordingly and close the file.

Ordered in Jacksonville, Florida, on July 22, 2020.

*As

Berger recognizes, he must refund Hartley $4677.75 in EAJA fees. Doc. 20 at 3.

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c:

Counsel of Record

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