Keesler v. Commissioner of Social Security
Filing
35
OPINION AND ORDER GRANTING 32 Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. § 406(b) in the amount of $11,495. Counsel is ORDERED to refund to Keesler $9,620 (the amount of the EAJA fee award that Counsel previously received) within thirty days of his receipt of the § 406(b) fee award. Signed by Magistrate Judge Susan L Collins on 11/3/2020. (bas)
USDC IN/ND case 1:18-cv-00166-SLC document 35 filed 11/03/20 page 1 of 6
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DAVID L. KEESLER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
sued as Andrew Saul, Commissioner of Social
Security,1
Defendant.
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CAUSE NO. 1:18-cv-00166-SLC
OPINION AND ORDER
Plaintiff David L. Keesler brought this suit to contest a denial of disability benefits by
Defendant Commissioner of Social Security (“Commissioner”). (ECF 1). On March 25, 2019,
the Court entered an Opinion and Order reversing the Commissioner’s denial of benefits and
remanding the case for further proceedings. (ECF 25).
Keesler’s attorney, Joseph Shull (“Counsel”), now moves pursuant to 42 U.S.C. § 406(b)
for the Court’s authorization of attorney fees in the amount of $11,495 for Counsel’s
representation of Keesler in federal court. (ECF 32). The Commissioner does not oppose
Counsel’s fee request. (ECF 34). For the following reasons, the motion for attorney fees will be
GRANTED.
A. Factual and Procedural Background
On May 16, 2018, Counsel entered into a Federal District Court Fee Agreement (the “Fee
Agreement”) with Keesler for his representation of Keesler in federal court, in which Keesler
1
Andrew Saul is now the Commissioner of Social Security, see, e.g., Saunders v. Saul, 777 F. App’x 821
(7th Cir. 2019); Michael T. v. Saul, No. 19 CV 1519, 2019 WL 3302215, at *1 n.2 (N.D. Ill. July 23, 2019), and
thus, he is automatically substituted for Nancy Berryhill in this case, see Fed. R. Civ. P. 25(d).
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agreed to pay Counsel twenty-five percent of any past-due benefits awarded to him.2 (ECF 332).
On June 8, 2018, Keesler filed the instant action with this Court, appealing the
Commissioner’s denial of his application for disability benefits. (ECF 1). On March 26, 2019,
the Court entered a judgment in Keesler’s favor and remanded the case to the Commissioner for
further proceedings. (ECF 25, 26).
On April 24, 2019, Keesler filed a request for attorney fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of $10,120.20, seeking payment for the
50.10 hours of attorney time spent advocating his claim in federal court. (ECF 27). The parties
subsequently stipulated to an EAJA fee award of $9,620, which the Court granted. (ECF 30, 31).
Counsel ultimately received the entire EAJA fee award of $9,620. (ECF 33 at 11).
On August 10, 2020, the Commissioner sent a notice of award to Keesler, informing that
he was entitled to monthly disability benefits beginning August 2013 and past-due benefits of
$69,980. (ECF 33-1 at 1-3 ). The Commissioner withheld $17,495 of Keesler’s past-due
benefits to pay Keesler’s attorneys—$6,000 of which the Commissioner distributed to counsel
who represented Keesler at the administrative level. (Id. at 3; ECF 33 at 2). On September 18,
2020, Counsel filed the instant motion pursuant to § 406(b), together with supporting documents,
seeking the Court’s approval of $11,495 in attorney fees before this Court. (See ECF 32, 33).
B. Legal Standard
Fees for representing Social Security claimants, both administratively and in federal
court, are governed by 42 U.S.C. § 406. Gisbrecht, 535 U.S. at 793-94. Section 406(a) controls
2
The most common fee arrangement between attorneys and social security claimants is the contingent fee
agreement. Gisbrecht v. Barnhart, 535 U.S. 789, 800 (2002).
2
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fees for representation in administrative proceedings, and § 406(b) controls attorney fees for
representation in court. Id. Unlike fees obtained under the EAJA,3 the fees awarded under § 406
are charged against the claimant, not the government. Id. at 796.
Under § 406(a), an attorney who has represented a claimant may file a fee petition or fee
agreement with the Commissioner to receive fees for his or her representation at the
administrative level. Id. at 794-95; 20 C.F.R. §§ 404.1725(a), 416.1525(a). There are, however,
limits on the amount that the Commissioner can award pursuant to § 406(a). Gisbrecht, 535 U.S.
at 795.
Under § 406(b), an attorney who has successfully represented a claimant in federal court
may receive “a reasonable fee for such representation, not in excess of 25 percent of the total of
the past-due benefits to which the claimant is entitled by reason of such judgment . . . .”4 42
U.S.C. § 406(b)(1)(A); Gisbrecht, 535 U.S. at 795. This twenty-five percent cap applies only to
fees for court representation and not to the aggregate fees awarded under §§ 406(a) and (b).
Culbertson v. Berryhill, 139 S. Ct. 517, 523 (2018).
Section § 406(b) has been harmonized with the EAJA. Gisbrecht, 535 U.S. at 796.
Although fee awards may be made under both the EAJA and § 406(b), a claimant’s attorney
must refund to the claimant the amount of the smaller fee that the attorney received, as an EAJA
award “offsets” an award under § 406(b). Id. at 797.
Unlike the award by the Commissioner under § 406(a), the Court is required under
3
The EAJA is a fee-shifting statute wherein the government pays attorney fees to a prevailing party when
the government’s position was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A).
4
“Collecting or even demanding from the client anything more than the authorized allocation of past-due
benefits is a criminal offense.” Gisbrecht, 535 U.S. at 796 (citing 42 U.S.C. §§ 406(a)(5), (b)(2); 20 C.F.R. §§
404.1740-1799).
3
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§ 406(b) to review for reasonableness the attorney fees yielded by contingent fee agreements.
Id. at 809. The Supreme Court has explained:
Congress has provided one boundary line: Agreements are
unenforceable to the extent that they provide for fees exceeding 25
percent of the past-due benefits. Within the 25 percent boundary, .
. . the attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.
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 807-08 (citations and footnotes omitted). “A petition for fees under § 406(b)(1) must be
brought within a reasonable time.” Smith v. Bowen, 815 F.2d 1152, 1156 (7th Cir. 1987).
C. Analysis
The Court is charged with determining whether Counsel’s requested fee of $11,495 under
the Fee Agreement and § 406(b) is “a reasonable fee for such representation, not in excess of 25
percent of the total of the past-due benefits . . . .” 42 U.S.C. § 406(b)(1)(A). The notice of
benefits from the Commissioner indicates that Keesler was awarded $69,980 in past-due
benefits. (See ECF 33-1 at 3). Thus, the fee amount that Counsel requests, $11,495, does not
exceed twenty-five percent of Keesler’s past-due benefits.
Counsel contends that the requested fee award of $11,495 is reasonable for the 50.10
attorney hours spent representing Keesler in federal court. It is obvious that Counsel obtained a
good result for Keesler, as the Commissioner ultimately found him disabled and awarded him
$69,980 in back benefits. See Gisbrecht, 535 U.S. at 808 (acknowledging that courts consider in
§ 406(b) fee requests the character of the representation and the results the representative
achieved); Brown v. Barnhart, 270 F. Supp. 2d 769, 772 (W.D. Va. 2003) (considering in a §
4
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406(b) analysis that counsel had handled 900 or more Social Security cases and achieved a large
measure of success for his client). However, in doing so, Counsel requested four twenty-eight
day extensions, all due to his “busy schedule.” (ECF 14-17, 20-23). This delay is a factor that
cuts against, at least to some extent, Counsel’s requested fee. See Gisbrecht, 535 U.S. at 808
(considering any extensions requested by the attorney in an effort to assess whether the attorney
created an unreasonable delay that would contribute to the attorney’s profit from the
accumulation of the claimant’s past benefits).
The risk of loss the attorney assumed in representing the plaintiff is another factor some
courts consider when assessing the reasonableness of the requested fee. “[T]here is a great risk
of loss in social security disability appeals at the district court level because a substantial
evidence standard of review governs rather than a de novo standard. The risk of loss is also
greater in social security cases because there are no settlements.” Hussar-Nelson v. Barnhart,
No. 99 C 0987, 2002 WL 31664488, at *3 (N.D. Ill. Nov. 22, 2002); see Crawford v. Astrue, 586
F.3d 1142, 1152 (9th Cir. 2009) (“The attorneys assumed significant risk in accepting these
[Social Security] cases, including the risk that no benefits would be awarded or that there would
be a long court or administrative delay in resolving the cases.”).
Here, Counsel’s requested fee of $11,495 divided by the 50.10 hours he spent on the case
in federal court equates to an effective rate of approximately $229 per hour.5 As such, Counsel’s
5
Although the Supreme Court in Gisbrecht rejected the lodestar approach (which incorporates
consideration of a reasonable hourly rate for an attorney) as a starting point to determine the reasonableness of a fee
request under § 406(b), see Gisbrecht, 535 U.S. at 802, 808, certain aspects of a lodestar approach remain in the
calculus; as a result, “[d]istrict courts are left to determine how much of the lodestar approach is still viable.”
Brannen v. Barnhart, No. 1:99-CV-325, 2004 WL 1737443, at *5 (E.D. Tex. July 22, 2004); see Jeter v. Astrue, No.
09-30452, 2010 WL 3783666, at *7 (5th Cir. 2010) (“[D]istrict courts may consider the lodestar method in
determining the reasonableness of a § 406(b) fee, but the lodestar calculation alone cannot constitute the basis for an
‘unreasonable’ finding.”).
5
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requested fee equates to an effective rate well below previous awards approved by this Court.
See, e.g., Rorick v. Colvin, No. 1:11-CV-00037, 2014 WL 3928488 (N.D. Ind. Aug. 12, 2014)
(awarding fee equating to $653.79 per hour); Harris v. Colvin, No. 1:11-CV-00405, 2014 WL
3899312 (N.D. Ind. Aug. 11, 2014) (awarding fee equating to $647.61 per hour); Duke v. Astrue,
No. 1:07-CV-00188, 2010 WL 3522572 (N.D. Ind. Aug. 30, 2010) (awarding fee equating to
$549.14 per hour).
Having considered the foregoing factors, the Court concludes that despite Counsel’s
creation of a four-month delay in the briefing process, Counsel’s requested fee award of $11,495
is reasonable for the good result he achieved for Keesler. Therefore, Counsel’s requested fee
award of $11,495 under § 406(b) will be authorized by this Court. See Gisbrecht, 535 U.S. at
796. Accordingly, within thirty days of his receipt of the § 406(b) award, Counsel must refund
$9,620, the amount of the EAJA fee award that Counsel previously received, to Keesler.
D. Conclusion
For the foregoing reasons, Counsel’s Motion for Authorization of Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (ECF 32) is GRANTED in the amount of $11,495. Counsel is ORDERED
to refund to Keesler $9,620 (the amount of the EAJA fee award that Counsel previously
received) within thirty days of his receipt of the § 406(b) fee award.
SO ORDERED.
Entered this 3rd day of November 2020.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge
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