Batista v. Colvin

Filing 24

MEMORANDUM DECISION AND ORDER re 21 Motion for Attorney Fees. So Ordered by Judge Brian M. Cogan on 12/21/2021. (Lee, Tiffeny)

Case 1:13-cv-04185-BMC Document 24 Filed 12/21/21 Page 1 of 4 PageID #: 588

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------MIGUEL ANGEL BATISTA,
Plaintiff,
- against COMMISSIONER OF SOCIAL SECURITY
Defendant.
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MEMORANDUM DECISION
AND ORDER
13-cv-4185 (BMC)

COGAN, District Judge.
Plaintiff’s counsel moves for an award of attorneys’ fees pursuant to 42 U.S.C. § 406(b),
following a remand by this Court for an additional administrative hearing. The case has a
difficult history. After this Court remanded it, it went through three more administrative
hearings and three more appeals to and remands by the Appeals Council before an ALJ
ultimately determined that plaintiff was disabled. That is the main reason that the Court is
deciding a fee application in 2021 on a case that it remanded in 2014.
Under the terms of plaintiff’s retainer agreement, which sets the fee at the maximum
amount allowed by law, see 42 U.S.C. § 406(b)(1), plaintiff’s counsel is entitled to a total of
$77,599.38, which is 25% of the past due benefits awarded. However, counsel is seeking only
approximately 12.5% of the award, i.e., $38,000, for work on the proceedings in this Court, in
the expectation that he will obtain an administrative award for the more substantial time
expended at the administrative level, and the two awards together will not (and cannot) exceed
$77,599.38. See 42 U.S.C. § 406(a) and (b). Counsel indicates that his client has consented to

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awards totaling 25%, and counsel has represented that he will return the $3,477.55 that he has
already received under the Equal Access to Justice Act directly to plaintiff.
An award under § 406(b) requires satisfaction of three elements: (1) a judgment in favor
of the claimant; (2) the fee must be awarded as part of the court’s judgment; and (3) the fee must
not exceed twenty-five percent of the total amount of past-due benefits awarded to the claimant.
See id. The Second Circuit has held that, subject to the 25% limitation, a court may enforce a
contingent fee arrangement in a social security disability case unless the court finds it to be
otherwise unreasonable. Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990) (citing McGuire v.
Sullivan, 873 F.2d 974, 981 (7th Cir. 1989)). In determining whether an award under § 406(b) is
reasonable, courts have considered numerous factors, including: (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 risk of loss the attorney assumed by taking the case. See Wells, 907 F.2d at
371-72; Joslyn v. Barnhart, 389 F. Supp. 2d 454, 456-57 (W.D.N.Y. 2005).
Counsel has documented that he (actually he and his colleague) spent a total of 18.10
hours in proceedings before this Court. This is both a reasonable and indeed efficient amount of
time considering the difficulties in the case and the high quality of plaintiff’s submissions. It is
at the low end of hours spent obtaining a remand of a social security case in this district. See
Padua v. Colvin, 602 F. App’x 25, 28 (2d Cir. 2015); Barbour v. Colvin, 993 F. Supp. 2d 284,
290 (E.D.N.Y. 2014) (“District courts in this Circuit generally hold that twenty to forty hours is a
reasonable expenditure of counsel time for routine social security cases”). However, it comes
out to a notional hourly rate of $2,099.45 per hour.

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The Commissioner, in performance of her role akin to that of a trustee, see Gisbrecht v.
Barnhart, 535 U.S. 789, 798 n.6 (2002), points out that many cases in this district have found
notional hourly rates much lower than this to constitute a windfall and have reduced them to the
range of $500–$1000 per hour, see e.g., Morales v. Commissioner, No. 18-cv-6906, 2021 WL
3409166 (E.D.N.Y. Aug. 4, 2021) (reducing imputed rate from about $900 per hour to $550 per
hour); Mills v. Berryhill, No. 15-cv-5502, 2019 WL 1507923, at *2 (E.D.N.Y. April 5, 2019)
(approving an hourly rate of $1,007.78). The Commissioner is not advocating for a reduction in
fees, as that is not her role, but she appropriately suggests that the Court should consider whether
the recovery sought here would be a windfall.
As the Supreme Court suggested in Gisbrecht, 535 U.S. at 802–08, undue emphasis of
notional hourly rates can lead to distorted results. Notional rates do not take into account that
because fees in these disability cases are only awarded if plaintiff receives benefits, then, just
like other areas of the law where fees are contingent on success, there will be many cases where
the attorneys receive no fees. Capping fees at a notional hourly rate also tends to punish
efficiency – here, if plaintiff’s counsel had spent 40 hours instead of 18.10 hours, the notional
hourly rate would be $950 per hour, within the range of rates noted by the Commissioner.
On the other hand, the Court has not found any cases where an attorney’s fee application
yielded a notional rate of more than $2,000, let alone a case where an attorney received it, and
counsel’s decision not to reply to the Commissioner’s expressed concerns suggests that counsel
hasn’t either. Balancing all the factors, the Court will reduce the amount of fees awarded to
$25,000. That still comes to a notional rate of nearly $1,400 per hour, higher than most if not all
decisions in this district, but still a reasonable return on counsel’s investment and the results he
obtained.

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Accordingly, pursuant to 42 U.S.C. § 406(b), counsel is awarded the sum of $25,000,
subject to returning the EAJA award that he previously received.
SO ORDERED.

Digitally signed by Brian
M. Cogan
______________________________________
U.S.D.J.

Dated: Brooklyn, New York
December 21, 2021

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