Genovese v. Colvin
MEMORANDUM & ORDER: Plaintiffs counsels motion 29 for attorneys fees is GRANTED and fees are awarded in the amount of $31,057.50 pursuant to § 406(b), with the amount of $7,793.68 in attorneys fees already awarded under the EAJA to b e paid by plaintiffs counsel to plaintiff. This corrected opinion fixes a bluebooking error on p. 3. Ordered by Judge Frederic Block on 8/6/2015. (Innelli, Michael) (Main Document 33 replaced on 8/6/2015) (Innelli, Michael). Modified on 8/6/2015 (Innelli, Michael).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
For the Plaintiff:
CHRISTOPHER J. BOWES, ESQ.
54 Cobblestone Drive
Shoreham, NY 11786
For the Defendant:
JAMES R. CHO, ESQ.
Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
BLOCK, Senior District Judge:
Counsel for Dominic A. Genovese (“plaintiff”) moves for an award of
attorney’s fees under 42 U.S.C. § 406(b)(1). Though the Commissioner of Social
Security (“Commissioner”) does not object to the motion, the Court must decide
whether the amount of fees sought is reasonable.1 For the following reasons,
The Commissioner’s failure to oppose this motion is not dispositive, as “section 406(b)
requires an affirmative judicial finding that the fee allowed is ‘reasonable[.]’” Gisbrecht v.
Barnhart, 535 U.S. 789, 807 n. 17 (2002); see also Smith v. Colvin, No. 1:09-CV-470, 2014 WL
1413630, at *1 (N.D.N.Y. Apr. 11, 2014) (“It is for the Court to determine whether the amount
of the fee requested under Section 406(b) is reasonable and should be awarded.”).
attorney’s fees are awarded to plaintiff’s counsel in the amount of $31,057.50. Out
of that amount, plaintiff’s counsel must remit $7,793.68 – the prior attorney’s fees
award under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 – to
Plaintiff retained Christopher J. Bowes to represent him in his pursuit of
disability insurance benefits (“DIB”) under the Social Security Act. On April 29,
2009, plaintiff signed a contingent fee agreement which provided that his counsel
would receive 25% of any past-due DIB awarded by the Commissioner.
On June 11, 2013, plaintiff filed a lawsuit in this Court to challenge the
Commissioner’s decision to reject his application for DIB. On May 15, 2014, the
Court remanded plaintiff’s case to the Commissioner for further proceedings. See
Genovese v. Colvin, No. 13-CV-3338, 2014 WL 1949227, at *1 (E.D.N.Y. May 15,
2014). Subsequent to the Court’s remand, the parties stipulated to a fee award of
$7,793.68 under the EAJA.
On remand, the Commissioner found plaintiff disabled and awarded him
prospective and retroactive benefits. When DIB were awarded, the Commissioner
withheld $31,057.50 – 25% of the past-due benefits award – for attorney’s fees.
A court may award an attorney who successfully represents a Social Security
Disability 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);
see also Gisbrecht, 535 U.S. at 807. Where, as here, there is a contingent agreement,
“a 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 to be unreasonable.” Wells v.
Sullivan, 907 F.2d 367, 371 (2d Cir. 1990).
In assessing reasonableness, a court should (1) “determine whether the
contingency percentage is within the 25% cap,” (2) “consider whether there has been
fraud or overreaching in making the agreement,” and (3) scrutinize “whether the
requested amount is so large as to be a windfall to the attorney.” Id. at 372. The
Supreme Court has also directed courts to consider (1) “the character of the
representation and the results . . . achieved,” and (2) whether “the attorney [was]
responsible for delay” that inflated his eventual fee. Gisbrecht, 535 U.S. at 807.
The Court begins its reasonableness analysis with the contingency agreement
itself. The simple, one-page agreement is unambiguous. Moreover, the 25% fee it
entails – which does not exceed the statutory cap – is a standard contingent fee for a
Social Security case. Id. at 803 (“Characteristically . . . attorneys and clients enter into
contingent-fee agreements specifying that the fee will be 25 percent of any past-due
benefits . . . .”) (internal quotation marks and citation omitted).
There is no suggestion that the agreement was the product of fraud or
overreaching. Similarly, nothing in the record indicates that plaintiff’s counsel’s
representation was in any way ineffective or substandard. Neither does the record
demonstrate any undue delay on the part of plaintiff’s counsel.
The Court also finds that the 25% contingency fee would not result in a
“windfall” to plaintiff’s counsel under these circumstances. The Commissioner
awarded plaintiff $124,320 in past-due DIB, of which counsel’s desired 25% share
would be $31,057.50. Divided by the 44.60 hours that plaintiff’s counsel spent
litigating this case in federal court, this results in an hourly fee equivalent to $696.36,
which is below what other courts in this circuit have found “reasonable” under §
406(b). See Joslyn v. Barnhart, 389 F. Supp. 2d 454, 457 (W.D.N.Y. 2005)
(approving award equivalent to $891.61 per hour); Blizzard v. Astrue, 496 F. Supp.
2d 320, 325 (S.D.N.Y. 2007) (approving award equivalent to $705.00 per hour);
Trupia v. Astrue, No. 05-CV-06085, 2008 WL 858994, at *4 (E.D.N.Y. Mar. 27,
2008) (approving award equivalent to $714.09 per hour).
Lastly, though fees may be awarded under both the EAJA and § 406, “the
claimant’s attorney must refund to the claimant the amount of the smaller fee.”
Gisbrecht, 535 U.S. at 796 (internal alteration omitted). Accordingly, because
plaintiff’s counsel has already obtained an attorneys’ fees award of $7,793.68
pursuant to the EAJA – which is less than the award sought pursuant to § 406(b) –
counsel must return the amount of such EAJA award to plaintiff from the payment
received under § 406(b).
For the foregoing reasons, the Court grants plaintiff’s counsel’s motion for
attorney’s fees and fees are awarded in the amount of $31,057.50 pursuant to §
406(b), with the amount of $7,793.68 in attorneys’ fees already awarded under the
EAJA to be paid by plaintiff’s counsel to plaintiff.
Senior United States District Judge
Brooklyn, New York
August 6, 2015
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