Couture v. Commissioner of Social Security
Filing
43
ORDER granting 41 Plaintiff's Amended Motion for an Award of Attorney['s] Fees under 42 U.S.C. § 406(b). Signed by Magistrate Judge Christopher P. Tuite on 8/18/2021. Signed by Magistrate Judge Christopher P. Tuite on 8/18/2021. (ACL)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANNA COUTURE,
Plaintiff,
v.
Case No. 8:16-cv-2428-CPT
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,1
Defendant.
___________________________________/
ORDER
Before the Court is Plaintiff’s Attorney’s Amended Motion for an Award of
Attorney[’s] Fees under 42 U.S.C. § 406(b). 2 (Doc. 41). For the reasons discussed
below, counsel’s motion is granted.
I.
The Plaintiff initiated this action in August 2016, seeking judicial review of the
Commissioner’s decision denying her claim for Disability Insurance Benefits and
Supplemental Security Income. (Doc. 1). After the parties had fully briefed the
Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to
Federal Rule of Civil Procedure 25(d), Ms. Kijakazi is substituted for Commissioner Andrew M.
Saul as the Defendant in this suit.
2
The Court denied counsel’s original fee motion without prejudice because it was unclear as to the
amount of fees sought and whether the Commissioner opposed the motion. See (Docs. 38, 40).
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matter (Docs. 22, 23), the Court entered an Order in June 2018 directing the
Commissioner to supplement the administrative record so that the Court could
resolve the parties’ dispute (Doc. 25).
In August 2018, at the Commissioner’s request, the Court reversed the
Commissioner’s decision and remanded the case for further proceedings. (Docs. 33,
34). The Clerk of Court entered Judgment for the Plaintiff the same day. (Doc.
35). In December 2018, the Court awarded attorney’s fees to Plaintiff’s counsel in
the sum of $3,194.78 pursuant to the Equal Access to Justice Act (EAJA). (Doc.
37).
As a result of the subsequent proceedings on remand, the Plaintiff was granted
past-due benefits totaling $152,002. (Doc. 41 at 3; Doc. 42 at 3).3 The SSA has
withheld $26,000.50 of this past-due amount for a possible future award of attorney’s
fees for work performed before the Court. (Doc. 41-2).
By way of the instant motion, Plaintiff’s counsel now requests that the Court
enter an order pursuant to 42 U.S.C. § 406(b)(1) approving $26,000 in fees. (Doc.
41). Counsel represents that his client consents to this fee amount and that he is
aware of his obligation to refund to his client the previous EAJA fee award of
$3,194.78 in the event the Court grants his motion. Id. at 4–6. The Commissioner
does not dispute the Plaintiff’s entitlement to fees under section 406(b)(1), but objects
The Plaintiff’s attorney represents that he did not receive a Notice of Award setting forth the
amount of past-due benefits authorized by the Social Security Administration (SSA), but that he
calculated the $152,002 figure by multiplying the total amount of fees the SSA reserved for the
Plaintiff’s representative by four. (Doc. 41 at 3).
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to the sum sought, although she fails to specify what the appropriate figure should
be. (Doc. 42 at 5).
II.
Before addressing the substance of the Plaintiff’s motion, the Court must
dispose of a threshold procedural issue stemming from the recent revisions to the
local rules. Effective February 1, 2021, Local Rule 7.01 now creates a bifurcated
process for parties seeking the Court’s approval of post-judgment attorney’s fees and
related non-taxable expenses.
M.D. Fla. R. 7.01.
Under this provision, a fee
applicant must first timely move the Court for a determination of the applicant’s
right to such compensation. M.D. Fla. R. 7.01(b). If the Court grants that motion,
the fee applicant must—within forty-five days of the Court’s order—file a
supplemental motion that complies with the following requirements:
(1) describes the meet-and-confer effort but preserves any confidential
settlement communication;
(2) specifies the resolved and unresolved issues;
(3) includes a memorandum of law on any disputed issue;
(4) includes for any disputed rate or hour:
(A) the timekeeper’s identity, experience, and qualification;
(B) specifies the resolved and unresolved issues;
(C) includes a memorandum of law on any disputed issue;
(D) the timekeeper’s requested rate;
(E) lead counsel’s verification that counsel charges the rate
requested, has reviewed each task, and has removed each charge
for a task that is excessive, duplicative, clerical, or otherwise
unreasonable;
(F) evidence showing the reasonableness of the rates based on the
prevailing market rate in the division in which the action is filed
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for similar services by a lawyer of comparable skill, experience,
and reputation; and
(5) includes for a disputed non-taxable expense:
(A) a receipt for, or other evidence of, the expense and
(B) lead counsel’s verification that counsel incurred the expense.
M.D. Fla. R. 7.01(c) (emphasis added).
The above italicized language suggests that, while Local Rule 7.01 mandates
two separate motions be submitted before the Court can award attorney’s fees and
expenses, the second motion may be deemed unnecessary if the requested sum is not
contested. Id. Indeed, courts analyzing fee petitions under the Southern District of
Florida’s analogous local rule—S.D. Fla. R. 7.3—dispense with the bifurcated
procedure where, as here, a party’s entitlement to fees is unopposed.
See, e.g.,
Cruzado v. Saul, 2021 WL 356157 (S.D. Fla. Jan. 14, 2021), report and recommendation
adopted, Cruzado-Rodrigues v. Saul, 2021 WL 354186 (S.D. Fla. Feb. 2, 2021); Forbes v.
Berryhill, 2021 WL 256364 (S.D. Fla. Jan. 26, 2021); Lloyd v. James E. Albertelli, P.A.,
2020 WL 7295767 (S.D. Fla. Dec. 10, 2020).
In light of this case law and the circumstances presented, the Court will invoke
its authority under Local Rule 1.01(b)—which permits the Court to suspend
application of a local rule—and decline to enforce Local Rule 7.01’s bifurcation
requirement in this case. M.D. Fla. R. 1.01(b); see also Tobinick v. Novella, 884 F.3d
1110, 1120 (11th Cir. 2018) (finding that a district court did not abuse its discretion
in allowing a party to submit “an omnibus motion for fees without adhering to some
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of the procedural requirements under [the Southern District of Florida’s] local
rules”).
With this threshold procedural matter resolved, the Court turns to the merits
of counsel’s fee motion. Section 406(b) governs the authorization of attorney’s fees
in Social Security cases where a district court remands the action to the
Commissioner for further proceedings and the Commissioner subsequently grants
the claimant past-due benefits. 42 U.S.C. § 406(b)(1)(A). In such situations, the
claimant may return to the district court—as the Plaintiff has done here—and seek
fees not exceeding 25% of the past-due benefits awarded. Id.; Culbertson v. Berryhill,
586 U.S. ___, 139 S. Ct. 517, 522 (2019).4
The authorized fee amount, however, must be reasonable. See Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002); Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271
(11th Cir. 2010). To ensure that this is the case, section 406(b) mandates that courts
conduct an independent review of counsels’ fee arrangements with their clients.
Gisbrecht, 535 U.S. at 807–08. As part of their oversight role, courts may direct that
The requirement under Federal Rule of Civil Procedure 54(d)(2) that fee petitions be filed no later
than fourteen days after the entry of judgment applies to fee motions brought pursuant to section
406(b). See Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006). Given the difficulty,
however, of integrating Rule 54(d)(2)’s fourteen-day requirement into the procedural framework of a
section 406 fee award, this District maintains a Standing Order, which provides that motions for
attorney’s fees under section 406(b) must be submitted no later than thirty days after the date of the
Social Security letter sent to plaintiff’s counsel of record at the conclusion of the SSA’s past-due
benefit calculation. See In Re: Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2), Case No. 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 12, 2014). Here, as alluded to above, the
Plaintiff’s lawyer represents that he never received a copy of the Notice of Award, but that he
became aware the Plaintiff was approved for benefits following remand in December 2020, after
which he moved for fees. (Doc. 38 at 3; Doc. 41 at 3). For this reason, and because the
Commissioner does not claim that the Plaintiff’s motion is time barred, the Court will not address
the timeliness issue.
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an attorney provide “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 (citation omitted).
In addition, an attorney who is successful in claiming attorney’s fees under
both the EAJA and section 406 must refund “‘to the claimant the amount of the
smaller fee.’” Gisbrecht, 535 U.S. at 796 (citation omitted). Counsel may do so
either by deducting an earlier EAJA award from a subsequent section 406(b) request,
or by refunding the smaller EAJA fee and accepting the section 406(b) payment in
full. Jackson, 601 F.3d at 1274.
Courts follow the framework set forth in Gisbrecht when assessing motions for
section 406(b) fees based upon contingency-fee contracts such as the one at issue
here. Hawthorne v. Comm’r of Soc. Sec., 2020 WL 619081, at *1 (M.D. Fla. Feb. 10,
2020). In Gisbrecht, the Court explained:
[Section] 406(b) does not displace contingent-fee agreements as the
primary means by which fees are set for successfully representing Social
Security benefits claimants in court. Rather, [section] 406(b) calls for
court review of such arrangements as an independent check, to assure
that they yield reasonable results in particular cases. . . . Within the 25
percent boundary . . . the attorney for the successful claimant must
show that the fee sought is reasonable for the services rendered.
535 U.S. at 807 (footnotes and citation omitted).
Gisbrecht instructs that, in conducting their review, courts should begin “by
looking . . . to the contingent-fee arrangement, [and] then testing it for
reasonableness.” 535 U.S. at 808. The reasonableness inquiry may involve the
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consideration of a number of factors, “including: (1) whether the requested fee is out
of line with the ‘character of the representation and the results the representative
achieved;’ (2) whether the attorney unreasonably delayed the proceedings in an
attempt to increase the accumulation of benefits and thereby increase his own fee;
and (3) whether ‘the benefits awarded are large in comparison to the amount of time
counsel spent on the case,’ the so-called ‘windfall’ factor.” Amos v. Comm’r of Soc.
Sec., 2020 WL 525948, at *2 (M.D. Fla. Jan. 30, 2020) (quoting Gisbrecht, 535 U.S. at
805, 808), report and recommendation adopted, 2020 WL 534490 (M.D. Fla. Feb. 3,
2020). Also relevant to the reasonableness analysis are the attorney’s “degree of
expertise,” adequacy of representation, and risk of loss, as well as whether [the]
attorney’s success is attributable to his own work or to an “unearned advantage.”
Gossett v. Soc. Sec. Admin., Comm’r, 812 F. App’x 847, 850–51 (11th Cir. 2020) (per
curiam) (internal quotation marks and citations omitted).
Of significance here,
however, under Gisbrecht, a district court may not rely solely on the effective hourly
rate when determining the reasonableness of the requested fee. Id. at 850.
In this case, the sought-after fee award of $26,000 is based on 16.4 hours spent
by the Plaintiff’s lawyer litigating this appeal before the Court between 2016 and
2018.
(Docs. 41, 41-3).
Plaintiff’s counsel argues that this monetary figure is
reasonable because it is consistent with the Plaintiff’s contingency fee agreement.
(Doc. 41 at 6; Doc. 41-1). He also reiterates that the Plaintiff does not object to this
amount. (Doc. 41 at 6).
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The Commissioner counters that authorizing such a fee payment would result
in a “windfall” to counsel because the Plaintiff’s initial brief totaled eight pages and
raised only a procedural issue, with minimal citations to the record; the
Commissioner subsequently moved for remand “on [her] own” after the parties filed
their respective briefs and the Court asked for additional information; and the issue
which served as the basis for the remand was related to an earlier claim. (Doc. 42 at
4). The Commissioner further contends that the requested fee amount—even when
reduced by the EAJA fee award of $3,194.78—would still equate to a “de facto
hourly rate” of approximately $1,390. Id. at 3.
After a careful evaluation of the matter, the Court finds that the sought-after
fee award is reasonable given the circumstances of this case. Several considerations
inform the Court’s conclusion. The contingent fee agreement, which provides for a
fee of 25%, is within the bounds of section 406(b). In addition, the Commissioner
does not challenge the Plaintiff’s representations as to the agreed-upon nature of the
fee award between counsel and the Plaintiff, nor does she argue that counsel caused
the proceedings to be unnecessarily protracted in an effort to profit from the
accumulation of benefits during the pendency of the action.
(Doc. 42).
And,
although the Commissioner suggests that the adequacy and quality of counsel’s
services were lacking due to the length and substance of the Plaintiff’s legal
memorandum, it cannot be disputed that the Court sought additional information
based on the Plaintiff’s brief, after which the Commissioner moved for a remand.
See (Docs. 25, 33).
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Lastly, while the Court recognizes the substantial size of the fee award as
measured against the time counsel spent on the matter, this factor alone—as noted
above—does not provide a sufficient basis for reducing the requested fee figure.
Gossett, 812 F. App’x at 850–51. This is especially true given the ample authority in
this District approving similar fee rates in other Social Security cases. See, e.g., Beira
v. Comm’r of Soc. Sec., 2021 WL 275905, at *3 (M.D. Fla. Jan. 4, 2021) (approving a
section 406(b) fee that amounted to a de facto hourly rate of approximately $2,620),
report and recommendation adopted, 2021 WL 268643 (M.D. Fla. Jan. 27, 2021);
Amador v. Acting Comm’r of Soc. Sec., 2019 WL 2269826, at *2–3 (M.D. Fla. May 28,
2019) (approving a de facto hourly rate of approximately $1,300 after reimbursement
of the EAJA fee, and collecting cases); Peterson v. Comm’r of Soc. Sec., 2018 WL
3650034, at *2 (M.D. Fla. June 19, 2018) (approving a de facto hourly rate of
approximately $2,000); Gorgoglione v. Comm’r of Soc. Sec., 2015 WL 2094909, at *3–4,
n.3 (M.D. Fla. May 5, 2015) (approving a de facto hourly rate of approximately
$1,150); see also Taggart v. Comm’r of Soc. Sec., 2021 WL 86809, at *2 (S.D. Fla. Jan.
11, 2021) (approving an hourly rate of $1,630.50).
III.
Accordingly, for the reasons stated above, it is hereby ORDERED:
1.
Plaintiff’s Attorney’s Amended Motion for an Award of Attorney[’s] Fees under
42 U.S.C. § 406(b) (Doc. 41) is granted, and the Plaintiff is awarded attorney’s fees in
the amount of $26,000 pursuant to 42 U.S.C. § 406(b). This sum shall be paid to
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Plaintiff’s counsel from the past-due benefits currently being withheld by the
Commissioner.
2.
Upon receipt of these funds, Plaintiff’s counsel shall promptly refund to
the Plaintiff the previously awarded EAJA fee of $3,194.78.
3.
This action is closed and shall remain closed.
DONE and ORDERED in Tampa, Florida, this 18th day of August 2021.
Copies to:
Counsel of record
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