Card v. Berryhill

Filing 29

ORDER: The plaintiff's Motion for Allowance of Attorney's Fees Under 42 U.S.C. § 406(b)(1) (ECF No. 27 ) is hereby GRANTED. The court awards counsel $31,190.25. Signed by Judge Alvin W. Thompson on 4/7/2023. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RUSSELL C.,
Plaintiff,
v.

KILOLO KIJAKAZI,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

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: Civil No. 3:18CV1060(AWT)
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RULING ON MOTION FOR ATTORNEY’S FEES
For the reasons set forth below, the plaintiff’s Motion for
Allowance of Attorney’s Fees Under 42 U.S.C. § 406(b) is being
granted.
The Social Security Administration (“SSA”), in a December
10, 2022 Notice of Award letter, notified the plaintiff that it
withheld $37,940.25, or 25 percent of past due benefits awarded,
for the payment of attorney’s fees. On December 13, 2022,
plaintiff’s counsel filed a motion for attorney’s fees pursuant
to 42 U.S.C. § 406(b). Counsel requests $31,190.25 for 35.5
hours of work or the equivalent of a de facto hourly rate of
$878.60. Counsel bases his request for an amount equal to 25
percent of past due benefits on a retainer agreement signed by

the plaintiff on June 11, 2018, and then makes a $6,750.00
adjustment for his failure to also file a motion for attorney’s
fees under the Equal Access to Justice Act (“EAJA”).
There is no evidence of fraud or overreaching.

The

defendant does not challenge either the reasonableness of the
request for attorney’s fees or its timeliness and seeks a
determination as to both.
The motion was timely filed on December 13, 2022, three
days after issuance of the Notice of Award letter dated December
10, 2022, and within the 14-day filing period.

See Sinkler v.

Comm’r of Soc. Sec., 932 F.3d 83, 89, 91 (2d Cir. 2019)(holding
that Federal Rule of Civil Procedure 54(d)(2)(B)’s 14-day filing
period for attorney’s fees (plus a three-day mailing period)
applies to Section 406(b) petitions and begins to run when the
claimant receives notice of the benefits calculation).
Pursuant to Section 406(b):
Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented
before the court by an attorney, the court may determine
and allow as part of its judgment a reasonable fee for
such representation, not in excess of 25 percent of the
total of the past-due benefits to which the claimant is
entitled
by
reason
of
such
judgment,
and
the
Commissioner . . . may . . . certify the amount of such
fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits.
42 U.S.C. § 406(b)(1)(A).
“Most plausibly read . . . § 406(b) does not displace
contingent-fee agreements as the primary means by which fees
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are set for successfully representing Social Security
benefits claimants in court. Rather, § 406(b) calls for court
review of such arrangements as an independent check, to assure
that
they
yield
reasonable
results
in
particular
cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S. Ct.
1817, 152 L.Ed.2d 996 (2002). When there is a contractual
contingency fee arrangement, a court considers the following
factors in gauging the reasonableness of a requested award:
1) whether the requested fee is out of line with the
“character of the representation and the results the
representation achieved;” 2) whether the attorney
unreasonably delayed the proceedings in an attempt to
increase the accumulation of benefits and thereby
increase his own fee; and 3) whether “the benefits
awarded are large in comparison to the amount of time
counsel spent on the case,” the so-called “windfall”
factor.
Joslyn v. Barnhart, 389 F. Supp. 2d 454, 456 (W.D.N.Y. 2005)
(quoting Gisbrecht, 535 U.S. at 808, 122 S. Ct. 1817).
With respect to the third factor—whether the award
constitutes a “windfall”—courts consider the following
factors:
1) whether the attorney's efforts were particularly
successful for the plaintiff, 2) whether there is
evidence of the effort expended by the attorney
demonstrated
through
pleadings
which
were
not
boilerplate and through arguments which involved both
real issues of material fact and required legal
research, and finally, 3) whether the case was handled
efficiently due to the attorney's experience in handling
social security cases.
Blizzard v. Astrue, 496 F. Supp. 2d 320, 323 (S.D.N.Y. 2007)
(quoting Joslyn, 389 F. Supp. 2d at 456-57).
Rodriguez v. Colvin, 318 F. Supp. 3d 653, 657–58 (S.D.N.Y.
2018).

“[T]he most critical factor” in determining the

reasonableness of a fee award “is the degree of success
obtained.”

Hensley, 461 U.S. at 436.
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Here, the contingency agreement was for 25 percent of the
total past-due benefits or $37,940.25, counsel’s efforts were
successful, and “courts within this Circuit have held” that
rates “similar” to the de facto rate of $878.60 “are not a
windfall . . . .”

Vasquez v. Saul, 3:17-cv-00183 (WIG), 2020 WL

4812849, at *2 (D. Conn. Aug. 18, 2020)(finding $791.44 was “not
a windfall” and citing cases with higher hourly rates between
$1,009.11 and $2,100 that were found to be “reasonable”).
Pursuant to Pub. L. No. 99-80, Sec. 3, 99 Stat. 183 (1985),
where a plaintiff’s counsel receives fees for the same work
before a district court under the EAJA and Section § 406(b),
plaintiff’s counsel “refunds to the claimant the amount of the
smaller fee.” See also Gisbrecht, 535 U.S. at 789 (“Congress
harmonized fees payable by the Government under EAJA with fees
payable under § 406(b) out of the claimant’s past-due Social
Security benefits in this manner: Fee awards may be made under
both prescriptions, but the claimant’s attorney must ‘refun[d]
to the claimant the amount of the smaller fee.’” (quoting
statute)); Wells v. Bowen (Wells I), 855 F.2d 37, 42 (2d Cir.
1988) (“Once appropriate fees under 42 U.S.C. § 406(b) are
calculated, the district court should order Attorney Hogg to
return the lesser of either that amount or the EAJA award to his
clients.”).

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In this case, the plaintiff’s counsel did not request EAJA
fees in either civil action. See ECF No. 27 at 5; Card v. Saul,
3:21-cv-0021-AWT (D. Conn.). Courts in this Circuit have found
that when, as here, a plaintiff’s counsel fails to file a
request for EAJA fees, and then subsequently files for Section
406(b) fees, that plaintiff’s counsel has harmed the client
because the client would have been entitled to the lesser of the
two fee awards if both were granted. See Blair v. Colvin, No.
11-cv-404, 2014 WL 3891321, at *1 (N.D.N.Y. Aug. 7, 2014)
(consolidating cases and holding that counsel is required to
file “a colorable EAJA application” and that failure to do so
compels the Court to reduce the Section 406(b) award by the
amount that would have been obtained under the EAJA); Gallo v.
Astrue, No. 10-CV-1918, 2011 WL 5409619, at *2 (E.D.N.Y. Nov. 8,
2011) (“While an attorney is by no means required to apply for
EAJA fees in every case, his failure to do so in certain cases
may bear on the reasonableness of any future fee he requests
under the SSA. This is because the result obtained for his
client may directly suffer when a lawyer seeks only SSA fees
when he should have, but did not, apply for EAJA fees. Where an
EAJA application would have succeeded, each dollar that would
have awarded under the EAJA (up to the amount requested under
the SSA) is a dollar the claimant should receive but does
not.”); Iliceto v. Sec’y of Dep’t of Health & Human Servs., No.
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83-CV-2160, 1990 WL 186254, at *1 (E.D.N.Y. Nov. 14, 1990)
(reducing the Section 406(b) award by the amount of EAJA fees
that would likely have been awarded).
Here, the plaintiff’s counsel explains that in determining
the amount of 406(b) fees to request, he reduced the total
possible amount of 406(b) fees, i.e. $37,940.25, by the amount
of the EAJA fees that would have been awarded. See Blair, 2014
WL 3891321, at *1; Iliceto, 1990 WL 186254, at *1. The
plaintiff’s counsel reports spending 35.5 hours of time at the
district court level in the first civil action, and notes that
the 2018 hourly rate in this region for EAJA fees was roughly
$200.00 per hour. See ECF No. 27 at 5. Counsel does not include
work performed on the second civil action in his calculation of
likely EAJA fees. Assuming the parties would have stipulated to
something slightly less than $7,100.00, the plaintiff’s counsel
estimates that he would have received an EAJA award of
$6,750.00 1. Consequently, counsel requests Section 406(b) fees in
the amount of $31,190.25 (i.e., the $37,940.25 minus an assumed
EAJA award of $6,750.00), which this court finds reasonable.
Therefore, the Motion for Allowance of Attorney’s Fees
Under 42 U.S.C. § 406(b)(1) (ECF No. 27) is hereby GRANTED. The
court awards counsel $31,190.25.
At times, the parties use “$6,700.00” in their submissions, but it is
apparent that the correct number is $6,750.00, which is the difference
between $37,940.25 and $31,190.25.

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It is so ordered.
Dated this 7th day of April 2023, at Hartford, Connecticut.

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/s/AWT
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Alvin W. Thompson
United States District Judge

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