United States District Court, M.D. Florida, Jacksonville Division
Christina M. Creech, Plaintiff,
Commissioner of Social Security, Defendant.
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
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,
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.
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.
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).
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,
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).
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.
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).
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).
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.
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