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Culin v. Commissioner of Social Security

United States District Court, M.D. Florida, Jacksonville Division

April 11, 2017

Jean-Paul Culin, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER GRANTING COUNSEL'S PETITION FOR FEE AUTHORIZATION

          Patricia D. Barksdale United States Magistrate Judge

         Jean-Paul 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.

         Background

         Culin 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.

         Culin 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.

         Harrington 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.

         On 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.

         Authority

         Three provisions governing attorney's fees apply: 42 U.S.C. §§ 406(a) and (b) and the EAJA.

         For 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, 2009).

         For 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).

         Under 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).

         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) 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 Act[1] 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).

         The 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 ...


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