Walls v. Commissioner of Social Security

Filing 40

RULING granting 38 Motion for Attorney's Fees Pursuant to 42 U.S.C. 406(b). Signed by Judge Robert M. Spector on 6/5/2020. (Watson, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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:
TIFFANY GRACE WALLS
:
:
V.
:
:
COMMISSIONER OF
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SOCIAL SECURITY
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:
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3:17 CV 1669 (RMS)

DATE: JUNE 5, 2020

RULING ON THE PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
PURSUANT TO 42 U.S.C. § 406(b)
On May 13, 2020, the plaintiff’s counsel filed a Motion for Attorney’s Fees pursuant to 42
U.S.C. § 406(b), seeking an award of fees in the amount of $14,664.54. (Doc. No. 38). On May
21, 2020, the defendant filed his response, deferring to the Court on the issue of the timeliness of
the plaintiff’s motion. (Doc. No. 39). For the reasons set forth below, the plaintiff’s Motion for
Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (Doc. No. 38) is GRANTED.
I.

PROCEDURAL BACKGROUND
The plaintiff’s counsel has represented the plaintiff since March 2013. In the most recent

action that gives rise to the Court’s jurisdiction over this current Motion, he represented the
plaintiff in an action before this Court for judicial review of the Commissioner’s unfavorable
decision denying the plaintiff benefits. The Court remanded the case for further proceedings on
March 22, 2019, following which, judgment entered. (Doc. No. 38 at 1). Upon remand, an
Administrative Law Judge held a hearing and then entered a fully favorable decision, dated
December 11, 2019. (Id.).
On April 18, 2020, the Social Security Administration issued a Notice of Award of
retroactive benefits totaling $88,265.20. (Id.). Pursuant to the retainer agreement between the

plaintiff and her counsel, entered on October 3, 2017, and consistent with 42 U.S.C. § 406(b), the
plaintiff’s counsel would receive the payment of an attorney’s fee in the amount of 25% of the
retroactive benefit award. (Doc. No. 38-1). Twenty-five percent of the retroactive benefit award
would be $22,06.40, $7,401.86 of which was already paid through an award under the Equal
Access to Justice Act (“EAJA”). (Doc. No. 38 at 2). Accordingly, the plaintiff’s counsel requests
an award of $14,664.54 under § 406(b).
II.

LEGAL STANDARD
Pursuant to 42 U.S.C. § 406(b)(1), ‘“[w]henever a court renders a judgment favorable to a

claimant . . . who represented before the court by an attorney, the court may determine and allow
as part of the judgment a reasonable fee for such representation,’ but that fee may not exceed ‘25
percent of the total of the past-due benefits to which the claimant is entitled.”’ Blizzard v. Astrue,
496 F. Supp. 2d 320, 321-22 (S.D.N.Y. 2007) (quoting 42 U.S.C. § 406(b)(1)(A)). Thus, attorney
fee awards under section 406(b) of the Social Security Act are paid directly out of the plaintiff’s
past benefits due to her attorney pursuant to the terms of a contingency agreement. 42 U.S.C.
§ 406(b)(1)(A); see Gisbrecht v. Barnhart, 535 U.S. 789, 795-76 (2002); Wells v. Sullivan, 907
F.2d 367, 371 (2d Cir. 1990) [“Wells II”] (holding that “the traditional lodestar method, borrowed
from fee-shifting contexts, is not appropriate for evaluation a reasonable fee under § 406(b).”);
Gray v. Berryhill, No. 15 CV 949-A, 2018 WL 5924747, at *2 (W.D.N.Y. Nov. 13, 2018) (holding
that “[f]ees requested pursuant to § 406(b) come from the attorney’s client’s recovery. They do
not come, as they do in the EAJA context, from the public fisc.”).
The effect of section 406(b) “is threefold. It fix[es] a maximum percentage for contingent
fees; [it] permit[s] recovery of such fees only out of past due benefits; and [it] require[s] court
approval for whatever amount of such fees should be paid.” Wells v. Bowen, 855 F.2d 37, 41 (2d

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Cir. 1988) (citations & internal quotation marks omitted). Accordingly, when considering a fee
application under section 406(b), “a court’s primary focus should be on the reasonableness of the
contingency in the context of the particular case; and the best indicator of ‘reasonableness’ of a
contingency fee in a social security case is the contingency percentage actually negotiated between
the attorney and client, not an hourly rate determined under lodestar calculation.” Wells II, 907
F.2d at 371.
The Court is tasked with determining the reasonableness of a fee award under 42 U.S.C.
§ 406(b). See Gisbrecht, 535 U.S. at 807; Wells II, 907 F.2d at 372. The court must consider: (1)
whether the amount requested exceeds the statutory 25% cap; (2) whether there was fraud or
overreaching in the making of the agreement; and (3) whether the requested amount is so large as
to be a windfall to the attorney. Wells II, 907 F.2d at 372.
In this case, the plaintiff’s counsel seeks an award in the amount of $14,664.54, which is
twenty-five percent of the total past due benefits, minus the $7,401.86 in fees already paid. It is
undisputed that this requested amount does not exceed the statutory cap. The plaintiff’s counsel
asserts that he spent a total of 36.8 hours of service at the district court level; thus, the de facto
hourly rate would be $599.63 ($22,066.40 divided by 36.8 hours). (Doc. No. 39 at 4). The
defendant defers to the Court to determine whether the hourly rate “is reasonable and not a
windfall, [given that] courts within this District and within the Second Circuit have approved and
disapproved comparable hourly rates.” (Doc. No. 39 at 4-5). Additionally, the defendant agrees
that “there is no evidence of fraud or overreaching.” (Doc. No. 39 at 5). The Court concludes that
the contingent fee requested is reasonable. See Mingione v. Berryhill, 3:17 CV 911 (WIG), Doc.
No. 31 (D. Conn. Apr. 8, 2020) (approving $625.40 per hour); see also Benoit v. Berryhill, 3:19
CV 443 (WIG), Doc. No. 19 (D. Conn. Apr. 30, 2020) (approving $570.50 per hour); Mitchell v.

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Astrue, 09-CV-83 (NGG) (SMG), 2019 WL 1895060, at *5-6 (E.D.N.Y. Apr. 29, 2019) (citing
cases).
The plaintiff’s counsel acknowledges he received an EAJA fee in the amount of $7,401.86,
which amount will “effectively be ‘refunded’ to the [p]laintiff by way of reduction[.]” (Doc. No.
38 at 2).
The remaining issue before the Court is whether the plaintiff’s counsel’s § 406(b) Motion
was timely filed. (Doc. No. 39 at 2). The Court concludes that it was, under the circumstances of
this case.
Although § 406(b) does not contain a time limitation for filing fee applications, the Second
Circuit has made clear that the fourteen-day (plus three days for mailing) filing deadline for
attorney fee petitions in Fed. R. Civ. P. 54(d)(2)(B) “provides the applicable limitations period for
filing § 406(b) motions.” Sinkler v. Berryhill, 932 F.3d 83, 87-88 & 89 n.5 (2d Cir. 2019). In
reaching that conclusion, the Second Circuit explained that Rule 54(d)(2)(B)’s limitations period
applies “because parties who must await the Commissioner’s award of benefits on remand cannot
be expected to file an application of attorney’s fees that are statutorily capped by the amount of an
as-yet-unknown benefits award. Once counsel receives notice of the benefits award[,]” the
fourteen-day limitations period begins to run. Sinkler, 932 F.3d at 88; but see id. at 91 (“the
fourteen-day filing period starts to run when the claimant receives notice of the benefits
calculation”).
The “fourteen-day limitations period[, however,] is not absolute.” Id. at 88. “[D]istrict
courts are empowered to enlarge that filing period where circumstances warrant” because Rule
54(d)(2)(B) expressly states that the fourteen-day period applies “[u]nless a . . . court order
provides otherwise.” Id. at 89-90 (“[W]here, as here, the rule itself affords courts the discretion to

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alter a specified filing time, we will generally defer to a district court in deciding when such an
alteration is appropriate in a particular case”).
In this case, the plaintiff’s counsel filed the pending Motion for Attorney’s Fees on May
13, 2020, twenty-five days after the April 18, 2020 Notice of Award Letter, which is eight days
after the fourteen-day filing deadline (with three days added for mailing). (Doc. No. 38). This
delay, however, constitutes “a short delay in marked contrast to the six-month delay in Sinkler.”
Lesterhuis v. Comm’r of Soc. Sec., 408 F. Supp. 3d 292, 295 (W.D.N.Y. 2019); see Sinkler, 932
F.3d at 90; see Blair v. Saul, 15 CV 307 A, 2020 WL 2744108 (W.D.N.Y. May 27, 2020) (applying
discretion to extend Rule 54(d)’s fourteen-day filing period to application filed fifty-two days after
the deadline). Additionally, although counsel has not offered a justification for his short delay in
filing the pending motion, during the time period at issue, all parties involved were subject to Stayat-Home Orders due to the Covid-19 pandemic. Even if the circumstances posed by the pandemic
did not exist, however, the Court, “like other courts in this Circuit, . . .[would still] exercise its
discretion and allow [the] plaintiff’s counsel to file [his] Section 406(b) application outside the
fourteen-day filing deadline.” Bukilici v. Saul, No. 3:15 CV 1777 (SALM), 2020 WL 2219184, at
*4 (D. Conn. May 7, 2020) (citing Randolph v. Saul, No. 17 CV 6711 (BCM), 2020 WL 1819933,
at *2 (S.D.N.Y. Apr. 10, 2020); Almodovar v. Saul, No. 16 CV 7419 (GBD) (SN), 2019 WL
7602176, at *2 (S.D.N.Y. Oct. 4, 2019), report and recommendation adopted, 2019 WL 6207784
(Nov. 21, 2019)). Accordingly, under the circumstances of this case, the Court concludes that the
plaintiff’s motion was timely filed.

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III.

CONCLUSION
For the reasons stated above, the plaintiff’s Motion for Attorney Fees under 42 U.S.C.

§ 406(b)(1) (Doc. No. 28) is GRANTED in the amount of $14,664.54.
SO ORDERED at New Haven, Connecticut the 5th day of June, 2020.
_/s/ Robert M. Spector_______________
Robert M. Spector
United States Magistrate Judge

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