Fitzpatrick v. Astrue
MEMORANDUM & ORDER: The Court finds plaintiff's counsels request 32 reasonable. Accordingly, it directs the Commissioner to release $57,212.74 of past-due benefits withheld to plaintiffs counsel and any remaining balance to plaintiff. Ordered by Judge Frederic Block on 6/16/2014. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EDWARD J. FITZPATRICK,
MEMORANDUM AND ORDER
Case No. 10-CV-4250 (FB)
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
For the Plaintiff:
CHRISTOPHER J. BOWES, ESQ.
54 Cobblestone Drive
Shoreham, New York 11786
For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By CANDACE APPLETON, ESQ.
Assistant U.S. Attorney
BLOCK, Senior District Judge:
Having recovered almost $275,000 in past-due benefits for his client,
plaintiff’s counsel asks the Court to approve attorney’s fees of $57,212.74
pursuant to 42 U.S.C. § 406(b)(1), which authorizes “a reasonable fee . . .
not in excess of 25 percent of the total of the past-due benefits.”1
Counsel has already recovered $11,344.26 pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), bringing the total
Counsel’s request is based upon a contingency-fee agreement in
which plaintiff agreed to pay a fee equal to 25% of any past-due benefits
recovered. In deciding whether such an agreement is reasonable, a court
“should, of course, determine whether the contingency percentage is
within the 25% cap; it should also consider whether there has been fraud or
overreaching in making the agreement, and whether the requested amount
is so large as to be a windfall to the attorney.” Wells v. Sullivan, 907 F.2d
367, 372 (2d Cir. 1990).
Because of the EAJA award, the fee sought pursuant to § 406 comes
to a little less than 21% of plaintiff’s recovery. There is no evidence of
fraud or overreaching. Time records reflect that counsel spent
approximately 69 hours seeking judicial review of the denial of benefits.
The resulting hourly rate—approximately $829 per hour—is high, but does
not constitute a windfall in light of the degree of success, the time and
effort required to achieve it, and the risk of nonpayment. See Wells, 907
F.3d at 371 (“We must recognize . . . that a contingency agreement is the
freely negotiated expression both of a claimant’s willingness to pay more
sought to $68,557.
than a particular hourly rate to secure effective representation, and of an
attorney’s willingness to take the case despite the risk of nonpayment.”).
In sum, the Court finds counsel’s request reasonable. Accordingly, it
directs the Commissioner to release $57,212.74 of past-due benefits
withheld to plaintiff’s counsel and any remaining balance to plaintiff.
Senior United States District Judge
Brooklyn, New York
June 16, 2012
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