Powers v. Commissioner of Social Security

Filing 29

ORDER granting 28 the amended petition and authorizing Harrington to charge Powers $29,130.50 from past-due benefits for her successful representation of him, with the Commissioner paying Harrington the net amount of $24,105.95 to account for the $5024.55 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 11/20/2020. (BLW)

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United States District Court
Middle District of Florida
Jacksonville Division
MICHAEL EDWARD POWERS,
Plaintiff,
NO. 3:19-cv-586-J-PDB

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order
Michael Powers’s lawyer, Chantal Harrington, petitions under 42 U.S.C.
§ 406(b) for $29,130.50 from past-due benefits. Doc. 28. The Commissioner of Social
Security has no opposition. Doc. 28 at 3.
Background
Powers applied for disability-insurance benefits. Tr. 113. An Administrative
Law Judge found him not disabled, Tr. 22, and the Appeals Council denied his request
for review, Tr. 1.
Powers brought this action to challenge the agency decision. Doc. 1. He and
Harrington entered into a contingent-fee agreement under which Harrington agreed
to represent him, and Powers agreed to pay Harrington 25 percent of any past-due
benefits to him and to any beneficiaries, minus any attorney’s fees paid under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Doc. 28-1.
Harrington filed a complaint, Doc. 1, and a 25-page brief arguing why the
Commissioner was wrong, Doc. 20. The Commissioner moved to reverse and remand
the action, Doc. 21, and the Court reversed and remanded for further agency

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proceedings, Docs. 22, 23. The Court later granted Powers’s EAJA request for
$5024.55 in attorney’s fees based on 24.6 hours of work. Docs. 25, 26.
On remand, the agency awarded Powers and his minor children $116,522 in
past-due benefits and withheld twenty-five percent of the amount for attorney’s fees.
Doc. 28 at 2; Doc. 28-3. The agency issued notices of the awards on September 29,
2020. 1 Doc. 28-3. A petition, Doc. 27, and an amended petition, Doc. 28, 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).

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),
6:12-mc-124-orl-22 (Nov. 14, 2012). The agency sent the letter on September 29, 2020, and
Harrington filed the petition on October 23, 2020, Doc. 27, making the petition timely.

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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).
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
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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).
The contingent-fee agreement contemplates fees of $29,130.50 (25 percent of
past-due benefits). Doc. 28-1.
To satisfy her burden of establishing the requested amount is reasonable,
Harrington contends, “The requested fee is fair and reasonable given that Plaintiff
recouped over $111,522 in … past-due benefits to date and given the number of hours
spent pursuing Plaintiff’s federal court case before this Court.” Doc. 28 at 2–3. She
also observes Powers “consented to the payment of the full amount of the requested
fee in the federal court agreement.” Doc. 28 at 3. And she states, “The contingent fee
agreement was entered into by both parties with the understanding that it would be
enforced.” Doc. 28 at 2.
For the reasons provided by Harrington and the Court’s own knowledge of
Harrington’s substantial expertise in social-security law, 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 and that Powers’s success may be attributed to Harrington’s skills and
experience, 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 $24,105.95 (the difference between the requested amount
and the EAJA fees).
Conclusion
The Court:
1.

grants the amended petition, Doc. 28;
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2.

authorizes Harrington to charge Powers $29,130.50 from pastdue benefits for her successful representation of him, with the
Commissioner paying Harrington the net amount of $24,105.95
to account for the $5024.55 in EAJA fees that must be refunded;
and

3.

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

Ordered in Jacksonville, Florida, on November 20, 2020.

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