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Creech v. Commissioner of Social Security

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

January 2, 2020

Christina M. Creech, Plaintiff,
Commissioner of Social Security, Defendant.



         Christina Creech's attorney, Chantal Harrington, has filed an amended petition under 42 U.S.C. § 406(b) seeking an award of $33, 000 for her successful representation of Creech. Doc. 26. Neither the Commissioner of Social Security nor Creech oppose the petition. Doc. 26 at 3-4, Docs. 26-1, 27.


         Creech applied for disability-insurance benefits and supplemental-security income. Tr. 281-94. An Administrative Law Judge found she was not disabled, and the Appeals Council denied her review request. Tr. 2-5, 31-41.

         Creech brought this case to challenge the decision. Doc. 1. She and Harrington entered into a standard contingent-fee agreement under which Harrington agreed to represent Creech, and Creech agreed to pay Harrington 25 percent of any past-due benefits. Doc. 26-4.

         On Creech's behalf, Harrington filed a complaint, Doc. 1, and a 23-page brief arguing why the decision was wrong, Doc. 16. The Commissioner responded in support of the decision. Doc. 17. The Court vacated the decision and remanded the case for further agency proceedings. Docs. 18, 19. The Court later granted a request for fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), and awarded Creech $4344.81 in attorney's fees based on 22.6 hours of work. Docs. 20- 20-2, 21, 22. Because Creech owed a government debt of $222.07, the amount paid was $4122.74. Doc. 26 at 4; see Doc. 26-5 (notice of lien).

         On remand, the Social Security Administration (“SSA”) determined Creech was entitled to $184, 522 in past-due benefits. Doc. 26 at 3, Doc. 26-3 at 1. The SSA set aside $46, 130.50 (25 percent) for attorney's fees. Doc. 26 at 3, Doc. 26-3. The amended petition, Doc. 26, 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). “The 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 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 per 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).

         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 cases 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, ” thereby creating a windfall to the attorney. Id.

         Gisbrechtrequires 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 ...

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