Dabydeen v. Michael J. Astrue, Commissioner Of Social Security

Filing 18

ORDER granting 14 Motion for Attorney Fees. Order attached hereto. Ordered by Judge Kiyo A. Matsumoto on 11/3/2015. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERROL DABYDEEN,
Plaintiff,
ORDER
11-Cv-878(KAM)

- against CAROLYN W. COLVIN,
Defendant.1
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MATSUMOTO, United States District Judge:

Before the court is a motion by plaintiff Errol
Dabydeen’s attorney, Charles E. Binder, Esq. (“petitioner”), for
attorney’s fees pursuant to the Social Security Act, 42 U.S.C. §
406(b)(1).
No. 14.)

(Mot. for Attorney’s Fees, dated June 18, 2015, ECF

Defendant Carolyn W. Colvin, Acting Commissioner of

Social Security (“defendant” or “Commissioner”) does not oppose
petitioner’s motion for an award of $20,988.98 in attorney’s fees
from plaintiff’s past due social security benefits.

(Def.’s

Resp. to Pl.’s Counsel’s Pet. for Attorney’s Fees, dated July 1,
2015, ECF No. 15.)

Plaintiff’s counsel notes that a copy of the

petition has been sent to plaintiff.

(Mem. of Law in Support of

Pl.’s Pet. for Attorney’s Fees, dated June 18, 2015, ECF No. 144, at 2.)

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Federal Rule of Civil Procedure 25(d),
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant.

1

When determining whether a fee request pursuant to 42
U.S.C. § 406(b) is reasonable, a court should consider: (1)
whether the contingency percentage is within the 25% cap; (2)
whether there has been fraud or overreaching in making the
agreement; and (3) whether the requested amount is so large as to
be a windfall to the attorney.
372 (2d Cir. 1990).

Wells v. Sullivan, 907 F.2d 367,

The court has reviewed petitioner’s

Memorandum of Law in Support of Plaintiff’s Petition for Attorney
Fees (ECF No. 14-4), the Affirmation of Charles E. Binder and the
attached exhibits (ECF Nos. 14-2, 14-2), and Defendant’s Response
(ECF No. 15), and finds plaintiff counsel’s request for
attorney’s fees in the amount of $20,988.88 to be reasonable and
does not exceed the twenty-five percent cap of plaintiff’s backdue benefits2.

See 42 U.S.C. § 406(b).

Consequently, IT IS ORDERED that attorney fees be
granted in the amount of $20,988.98, which represents less than
25% ($30,988.98) of the past due benefits awarded to the
plaintiff, to CHARLES E. BINDER, petitioner.

Upon receipt of

this sum, petitioner is directed to remit $1,919.51 directly to
the plaintiff, as plaintiff’s previously awarded Equal Access to
Justice Act fees of $4,451.52 were reduced by $2,532.01 due to
plaintiff’s pre-existing state tax debt.

2

Nothing in this order

Pursuant to the court’s order dated October 22, 2015, the government
submitted a letter dated November 2, 2015 verifying the total amount of
plaintiff’s past due social security benefits in the amount of $123,955.90.

2

will preclude plaintiff’s duly appointed representative(s) from
requesting fees under 42 U.S.C. § 406(a) for time spent handling
plaintiff’s case before the Social Security Administration
provided that the combined fees approved under §§ 406(a) and
406(b) does not exceed $30,988.98, which represents 25% of the
retroactive benefits awarded to the plaintiff.

Dated: November 3, 2015
Brooklyn, New York
___________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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