Besignano v. Astrue

Filing 35

ORDER granting 28 Motion for Attorney Fees -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, Plaintiffs counsels unopposed motion for the award of attorney's fees is granted, and attorneys fees are awarded in the amount of $35,267.50 pursuant to 42 U.S.C. § 406(b). Plaintiffs counsel is directed to remit to Plaintiff the $7,600.00 previously awarded as attorneys fees under the Equal Access to Justice Act. This case was closed previously by court order. SO ORDERED by Chief Judge Dora Lizette Irizarry on 4/6/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMES BESIGNANO,
:
:
Plaintiff,
:
:
-against:
:
NANCY A. BERRYHILL, 1
:
Commissioner of Social Security,
:
:
Defendant.
:
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DORA L. IRIZARRY, Chief United States District Judge:

SUMMARY ORDER
12-CV-6123 (DLI)

Christopher James Bowes (“Mr. Bowes”), counsel to plaintiff James Besignano
(“Plaintiff”) in this action, moves pursuant to 42 U.S.C. § 406(b) for an award of attorney’s fees
in the amount of $35,267.50. (See generally Pl.’s Mem. in Supp. of § 406(b) Mot. (“Mem.”), Dkt.
Entry No. 30.) The Commissioner of Social Security (“Commissioner”) does not oppose the
motion. (See Dkt. Entry No. 31.) For the reasons set forth below, counsel is awarded $35,267.50
in attorney’s fees, and is directed to refund Plaintiff $7,600.00 the amount previously received
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
BACKGROUND
Pursuant to a retainer agreement dated November 26, 2012, Plaintiff retained counsel to
represent him in his pursuit of Social Security Disability (“SSD”) benefits under the Social
Security Act (the “Act”). (See Declaration of Christopher James Bowes, dated June 27, 2016
(“Bowes Decl.”), Ex. A, Dkt. Entry No. 32.) On December 13, 2012, with the assistance of
counsel, Plaintiff filed an appeal to challenge the final decision of the Commissioner, which
affirmed an April 28, 2011, decision of the Administrative Law Judge (“ALJ”). (See Compl. ¶¶

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On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. Therefore, the Court
has substituted her as the named Defendant pursuant to Federal Rule of Civil Procedure 25(d).

10-11, Dkt. Entry No. 1.) The ALJ found that Plaintiff was not disabled because he retained the
capacity to perform sedentary work. (Id. ¶ 10.) On August 14, 2014, the Court issued an opinion
and order reversing the Commissioner’s decision in part and remanding the matter to the
Commissioner for further administrative proceedings. (See Dkt. Entry No. 23.) By written
stipulation approved and “So Ordered” by the Court on November 12, 2014, the parties agreed to
an award of $7,600.00 in attorney’s fees under the EAJA. (See Dkt. Entry No. 27.)
Administrative proceedings resumed before a different ALJ in 2015, and the ALJ found
Plaintiff disabled and entitled to SSD benefits. (Bowes Decl. ¶¶ 12-13.) On September 30, 2015,
Plaintiff was advised that the Commissioner had withheld $35,267.50, or 25% of the past-due
benefits payable to Plaintiff for potential attorney’s fees. (Id.) Counsel now moves this Court to
authorize attorney’s fees in the amount of $35,267.50, representing the withheld funds (before
applying the setoff for EAJA fees previously received).
DISCUSSION
Under 42 U.S.C. § 406(b) of the Act (“§ 406(b)”), a district court may award an attorney
who successfully represents a claimant a “reasonable fee . . . not in excess of 25 percent of the
total of the past-due benefits to which the claimant is entitled.” 42 U.S.C. § 406(b)(1)(A). Where,
as here, there is a contingency fee arrangement in place, “the district court’s determination of a
reasonable fee under § 406(b) must begin with the agreement, and the district court may reduce
the amount called for by the contingency agreement only when it finds the amount unreasonable.”
Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990). Factors a courts should consider in
determining whether a fee is unreasonable include: “(1) whether the retainer was the result of fraud
or overreaching; (2) whether the attorney was ineffective or caused unnecessary delay; (3) whether
the fee would result in a windfall to the attorney in relation to the services provided; and (4) the

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risk of loss the attorney assumed by taking the case.” Kazanjian v. Astrue, 2011 WL 2847439, at
*1 (E.D.N.Y. July 15, 2011) (citing Wells, 907 F.2d at 372).
Here, the fee agreement itself is a straightforward two-page document that was executed
prior to filing Plaintiff’s appeal. The fee agreement provides that, “the contingency fee paid to
this firm shall be 25% of all retroactive or past due social security disability benefits awarded to
[Plaintiff.]” (Bowes Decl., Ex. A.) On its face, the agreement is reasonable, as the 25% fee it
provides for is a standard contingency fee in Social Security cases. See Gisbrecht v. Barnhart,
535 U.S. 789, 803 (2002) (“Characteristically . . . attorneys and clients enter into contingent-fee
arrangements specifying that the fee will be 25 percent of any past-due benefits . . .”) (internal
quotation marks and citation omitted). Additionally, there is no indication in the record or
allegations that the agreement is the product of fraud or overreaching or that Plaintiff’s counsel
caused a delay that inflated the requested fees. Therefore, the Court finds that the agreement is
reasonable and should be enforced unless it results in a windfall to counsel.
The requested fee award does not constitute a windfall to Plaintiff’s counsel. Mr. Bowes
seeks an award of attorney’s fees in the amount of $35,267.50 for 43.5 hours of work on behalf of
Plaintiff before this Court. (Bowes Decl. ¶ 22.) This is equivalent to an hourly rate of $810.74.
(Id.) Although this amount appears considerable relative to the hours worked, it falls within the
range of awards found both “reasonable” and as not constituting a windfall under § 406(b) by other
courts in this circuit. See Kazanjian, 2011 WL 2847439, at *2 (approving award equivalent to
hourly fee of $2,100.00); Diz v. Astrue, 2010 WL 322028, at *2 (E.D.N.Y. Jan. 26, 2010) (granting
award of 25% past-due benefits in an amount equivalent to $825.00 hourly rate for 17.4 hours
worked); Joslyn v. Barnhart, 389 F. Supp.2d 455-57 (W.D.N.Y. 2005) (awarding as reasonable
attorney’s fees 25% past-due benefits equivalent to $891.61 hourly rate). The award does not

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constitute a windfall when viewed against the positive result obtained by counsel, and the risk of
loss Mr. Bowes assumed in taking Plaintiff’s case on a contingency basis. Accordingly, counsel’s
unopposed motion for $35,267.50 in attorney’s fees is granted.
Finally, although fees are permitted under both the EAJA and § 406(b), “the claimant's
attorney must refund to the claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796
(internal citation and quotation marks omitted). Here, Plaintiff’s counsel recovered $7,600.00 in
attorney’s fees under the EAJA and must return that amount to Plaintiff from the payment awarded
under § 406(b).
CONCLUSION
For the foregoing reasons, Plaintiff’s counsel’s unopposed motion is granted, and
attorney’s fees are awarded in the amount of $35,267.50 pursuant to 42 U.S.C. § 406(b).
Plaintiff’s counsel is directed to remit to Plaintiff the $7,600.00 previously awarded as attorney’s
fees under the EAJA.
SO ORDERED.
Dated: Brooklyn, New York
April 6, 2017
______________/s/______________
DORA L. IRIZARRY
Chief Judge

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