United States District Court, M.D. Florida, Jacksonville Division
ORDER GRANTING COUNSEL'S PETITION FOR FEE
Patricia D. Barksdale United States Magistrate Judge
Culin's attorney, Chantal Harrington, Esquire, has filed
a petition under 42 U.S.C. § 406(b) and 20 C.F.R. §
404.1728(b) asking for authorization to receive $6578.50 in
attorney's fees for her successful representation of him
in this case. Doc. 25. The Commissioner of the Social
Security Administration (“SSA”) does not oppose
the petition. Doc. 25 at 3. Culin's position is unknown.
applied for benefits. Tr. 167-68. An Administrative Law Judge
found no disability, and the Appeals Council denied his
review request. Tr. 1-4, 27-38. Jessica Dumas, Esquire,
represented him at the administrative hearing. Tr. 43.
brought this case to challenge the SSA's decision. Doc.
1. He and Harrington entered into a standard contingent-fee
agreement under which she agreed to represent him in this
case, and he agreed to pay her 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. 25-3.
filed a complaint, Doc. 1, and a 25-page brief, Doc. 16. The
Commissioner filed an unopposed motion asking the Court to
remand the case. Doc. 19. The Court granted the motion,
reversed the denial of benefits, and remanded the case for
further administrative proceedings. Doc. 20. The Court later
awarded Culin $3959.60 in EAJA fees based on 20.9 hours at
$188.60 per hour for work in 2014 and $189.48 an hour for
work in 2015 and $420.10 in costs. Docs. 22, 23. Harrington
did not receive the attorney's fees because the United
States Department of the Treasury applied that amount to
federal debts Culin owed. Doc. 25-1 at 3, 16; Doc. 25-5.
remand, the SSA determined Culin was entitled to $50, 314 in
past-due benefits. Doc. 25-4 at 3. The SSA set aside 25
percent of the award ($12, 578.50) for attorney's fees.
Doc. 25-4 at 3. Dumas petitioned for $6000 in fees for her
work at the administrative level. Doc. 25 at 2. This petition
followed. Doc. 25.
provisions governing attorney's fees apply: 42 U.S.C.
§§ 406(a) and (b) and the EAJA.
representation during administrative proceedings, §
406(a) provides that an attorney may petition for fees, and
the SSA must allow them if the claimant had been successful.
In setting those fees, the SSA considers various factors. 20
C.F.R. § 404.1725(b). Alternatively, an attorney may
file a contingent-fee agreement before the benefits ruling.
42 U.S.C. § 406(a)(2). If the ruling favors the
claimant, the SSA generally will approve the agreement
subject to the limitation that fees may not exceed 25 percent
of past-due benefits or $6000, whichever is less. 42 U.S.C.
§ 406(a)(2)(A)(ii), (iii); 74 Fed. Reg. 6080 (Feb. 4,
representation during court proceedings, § 406(b)
provides that an attorney who succeeds in obtaining 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-not in addition to-the past-due benefits. 42
U.S.C. § 406(b)(1)(A). The combined fees under
§§ 406(a) and 406(b) may not exceed 25 percent of
past-due benefits. Dawson v. Finch, 425 F.2d 1192,
1195 (5th Cir. 1970).
the EAJA, 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 an hour (unless a special circumstance justifies
more). 28 U.S.C. § 2412(d)(2)(A).
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)
petition. Jackson v. Comm'r of Soc. Sec., 601
F.3d 1268, 1274 (11th Cir. 2010). The EAJA savings provision
states, “Section 206(b)(2) of the Social Security
shall not apply … if, where the claimant's
attorney receives fees for the same work under both [§
406(b) and the EAJA], the claimant's attorney refunds to
the claimant the amount of the smaller fee.” 28 U.S.C.
§ 2412 note, Pub. L. No. 99-80, § 3, 99 Stat. 183,
186 (Aug. 5, 1985).
EAJA savings provision's reference to the amount of EAJA
fees an attorney “receives” and direction to
“refund … the amount of the smaller fee”
indicate the provision applies (and the amount of the EAJA
award offsets requested § 406(b) fees) only if the
attorney received an EAJA award. See28 U.S.C. §
2412 note. If the attorney never received an EAJA award
because the Treasury Department used the EAJA award to pay
the claimant's federal debts, there is no amount of EAJA
fees “received, ” no risk of double recovery
prohibited by § 406(b)(2), and no amount to
“refund.” See Reeves v. Astrue, 526 F.3d
732, 737 (11th Cir. 2008) (explaining the savings provision
“is not implicated … where the attorney never
receives the proceeds of an EAJA award” because the
Treasury Department diverted the proceeds to pay an
outstanding debt); Conner v. Colvin, No.
13-cv-03324-KAW, 2016 WL 5673297, at *3 (N.D. Cal. Oct. 3,
2016) (unpublished) (holding ...