Gilbert v. Commissioner of Social Security

Filing 31

ORDER granting 30 the corrected petition and authorizing Harrington to charge Gilbert $21,788 from past-due benefits for her successful representation of her, with the Commissioner paying Harrington the net amount of $16,961.85 to account for the $4826.15 in EAJA fees that must be refunded; and directing the clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 10/13/2020. (ASL)

United States District Court
Middle District of Florida
Jacksonville Division
SHIRENA L. GILBERT,
Plaintiff,
NO. 3:17-cv-588-J-PDB

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order
Shirena Gilbert’s attorney, Chantal Harrington, has filed a corrected petition
under 42 U.S.C. § 406(b) seeking an award of $21,788 for her successful
representation of Gilbert in this action. Doc. 30. The Commissioner of Social Security
has no opposition. Doc. 30 at 19.
Background
Gilbert applied for disability-insurance benefits. Tr. 153. An Administrative
Law Judge found her not disabled, Tr. 30, and the Appeals Council denied her request
for review, Tr. 1.
Gilbert brought this action to challenge the agency decision. Doc. 1. She and
Harrington entered into a contingent-fee agreement under which Harrington agreed
to represent her, and Gilbert agreed to pay Harrington 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. 30-3.
Harrington filed a complaint, Doc. 1, and a 20-page brief arguing why the
Commissioner was wrong, Doc. 19, and the Commissioner filed a response arguing
otherwise, Doc. 22. The Court reversed and remanded for further agency proceedings.

Docs. 23, 24. The Court later granted Harrington’s request under the EAJA for
$4826.15 in attorney’s fees based on 24.5 hours of work. Doc. 26.
On remand, the agency awarded Gilbert more than $111,000 in past-due
benefits and withheld twenty-five percent of the amount for attorney’s fees. Doc. 30
at 3; Doc. 30-2 (notice). A petition, Doc. 28, and corrected petition, Doc. 30, followed.
Law & Analysis
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). “[T]he 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 action, unless the United States’ position was substantially
justified or special circumstances make an award unjust. Id. § 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. Id. § 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) fees. 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
employing the lodestar method. Gossett v. Soc. Sec. Admin., Comm’r, 812 F. App’x
847, 849–51 (11th Cir. 2020).

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In Gisbrecht, the Supreme Court endorsed the use of contingent-fee
arrangements in social-security actions 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,” creating a windfall for 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 attorney’s experience, the percentage of
past-due benefits the requested fees would consume, the value of the action to the
claimant, the difficulty of the action, and the claimant’s consent to the requested fee.
Jeter v. Astrue, 622 F.3d 371, 382 (5th Cir. 2010).
Harrington explains the agency issued a final notice of award on August 10,
2020. 1 See Doc. 30-2 (notice). The contingent-fee agreement contemplates fees of

1Under

the Court’s standing order, counsel must request fees “not later than thirty
(30) days” after the agency sends a letter “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.”
In re: Procedures for Applying for Attorney’s Fees under 42 U.S.C. §§ 406(b) and 1383(d)(2),

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$27,788 (25 percent of past-due benefits), Doc. 30-3, but Harrington seeks only
$21,788. 2 Doc. 30 at 1–2.
To satisfy her burden of establishing the requested amount is reasonable,
Harrington observes she accepted a great risk of no fees in accepting representation,
the amount does not exceed 25 percent of the past-due benefits and is authorized by
the contingent-fee agreement, Gilbert obtained substantial past-due benefits, Gilbert
benefited from Harrington’s skills and experience in social-security actions,
Harrington acted speedily and diligently, and other courts have approved similar or
higher fees. Doc. 30 at 7–14. Harrington contends that, considering those
circumstances, $21,788 is not a windfall. Doc. 30 at 15–18.
For the reasons provided by Harrington, the requested fees are reasonable. 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 action. See Gisbrecht, 535
U.S. at 808. But considering the substantial risk of no award, that Gilbert’s success
may be attributed to Harrington’s skills and experience, and that Harrington is
seeking less than the contractual and statutorily-authorized amount, it is appropriate
for her to “reap the benefit of her work.” See Jeter, 622 F.3d at 381 (quoted).
Recognizing that the EAJA fees must be refunded, Harrington asks the
Commissioner to pay her $16,961.85 (the difference between the requested amount
and the EAJA fees).

6:12-mc-124-orl-22 (Nov. 14, 2012). The agency sent the letter on August 10, 2020, and
Harrington filed a petition on September 8, 2020, Doc. 28, making the petition timely.
2Harrington

explains the attorney who represented Gilbert on remand, Michael
Sullivan, filed a fee petition in the amount of $6000. Doc. 30 at 3. The $21,788 she seeks is
the balance of the total fees withheld ($27,788) minus $6000.

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Conclusion
The Court:
1.

grants the corrected petition, Doc. 30;

2.

authorizes Harrington to charge Gilbert $21,788 from past-due
benefits for her successful representation of her, with the
Commissioner paying Harrington the net amount of $16,961.85
to account for the $4826.15 in EAJA fees that must be refunded;
and

3.

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

Done and ordered in Jacksonville, Florida, on October 13, 2020.

c:

Counsel of record

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