Finnegan v. Colvin

Filing 31

MEMORANDUM and ORDER: Plaintiff's motion 25 for attorneys fees is granted. The Commissioner is ordered to disburse $13,402.75 to Seelig and any remainder to Finnegan. Upon receipt of these funds, Seelig is directed to refund the $7,400.00 EAJA award to Finnegan. Ordered by Judge Frederic Block on 1/10/2023. (MI)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EUGENE FINNEGAN,
MEMORANDUM AND ORDER

Plaintiffs,

Case No. 16-CV-3939 (FB)

-againstKILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Appearances:
For Plaintiffs:
PHILIP SEELIG
Seelig Law Office, LLC
299 Broadway, Suite 1600
New York, NY 10007

For Defendant:
BREON PEACE
United States Attorney
ANNE M. ZEIGLER
Special Assistant U.S. Attorney
6401 Security Boulevard
Baltimore, MD 21235

BLOCK, Senior District Judge:

Plaintiff Eugene Finnegan (“Finnegan”) obtained past-due disability benefits
after this Court vacated the Social Security Administration’s (“SSA”) denial of his
benefits claim. Pending before the Court is Attorney Philip H. Seelig’s (“Seelig”)
motion under 42 U.S.C. § 406(b) for $13,402.75 in attorney’s fees.
After this Court remanded Finnegan’s claim to the Commissioner for
calculation of benefits on October 30, 2017, SSA sent Finnegan a Notice of Award
letter dated January 30, 2018, which advised him that $29,135.50 was being
withheld for a potential attorney’s fees request. Seelig filed a petition under 42
U.S.C. § 406(a) on April 13, 2018, requesting $30,712.50 in attorney’s fees, and
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received $30,608.50 on August 26, 2022. This Court previously awarded Seelig
$7,400 in fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
In April and September of 2018, SSA issued additional Notice of Award
Letters to Finnegan notifying him of past-due auxiliary benefits for his spouse and
child, which Seelig was not involved in requesting. SSA notified Finnegan and
Seelig on September 14, 2022 that it was withholding $13,402.75, representing
25% of these auxiliary benefits, in anticipation of an additional fees request. Seelig
filed the instant motion on September 21, 2022, seven days after receiving notice
of the withholding of additional funds. Seelig expended approximately 42.1 hours
of attorney time for his representation of Finnegan before this Court.
1. Timeliness
Federal Rule of Civil Procedure 54(d)(2)(B) allows § 406(b) motions to be
filed within fourteen days from “when the claimant receives notice of the benefits
calculation.” Sinkler v. Comm’r of Soc. Sec., 932 F.3d 83, 91 (2d Cir. 2019). That
filing period may be enlarged “where circumstances warrant.” Id. at 89. “Where
multiple notices are expected due to, inter alia, benefits awarded to family
members, the deadline may be extended until counsel has received the necessary
documentation to identify the maximum allowable attorney’s fee.” Joel Paul C. v.
Comm’r of Soc. Sec., No. 19-CV-19SR, 2022 WL 11261662, at *2 (W.D.N.Y. Oct.
19, 2022) (citing Hopkins v. Cohen, 390 U.S. 530 (1968)).
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Here, Seelig filed the instant § 406(b) motion more than three years after
Finnegan received his calculation of auxiliary benefits in 2018. However, Seelig
requests that the filing window be extended because he did not receive notice of
the auxiliary benefits until August 4, 2022, or the amount of attorney’s fees being
withheld until September 14, 2022. Seelig maintains that he first learned of the
auxiliary funds on August 4, when SSA’s $30,608.50 attorney’s fees payment
prompted him to inquire with SSA as to why more than the withheld amount of
$29,135.50 had been disbursed. In response, SSA informed Seelig that auxiliary
benefits had been awarded, and on September 14 informed him that $13,402.75, or
25% of the auxiliary benefits, was being withheld for attorney’s fees. Because
Seelig did not have notice of the amount of available fees for auxiliary benefits
until September 14, 2022, and because he filed the instant motion seven days after,
the Court opts to enlarge the filing period and deem Seelig’s motion timely. See
Joel Paul C., 2022 WL 11261662, at *2.
2. Reasonableness of Fees Requested
Lawyers for prevailing plaintiffs in Social Security actions are entitled to
“reasonable [attorney's] fee[s] [that are] not in excess of 25 percent of the total
past-due benefits to which the plaintiff is entitled.” 42 U.S.C. § 406(b). The
Supreme Court has held that 42 U.S.C. § 406(b)’s “reasonable fee” provision
allows contingency fee agreements, so long as they do not provide for a fee “in
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excess of 25 percent of the total past due benefits” and are “reasonable.” See
Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002). Second Circuit courts weigh
three factors when assessing the reasonableness of a fee agreement: (1) whether the
proposed fee is below the 25% maximum; (2) whether it is the product of fraud or
attorney overreach; and (3) whether it is so large as to be a windfall to the attorney.
Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990). In 2022, the Second Circuit
provided additional factors for assessing whether the attorney would receive a
windfall: (1) the lawyer’s ability and expertise and whether they were particularly
efficient, (2) the nature and length of the professional relationship with the
claimant, including any representation at the agency level, which can indicate the
case’s complexity, “the lawyering skills necessary,” its risks, “and the significance
of the result achieved in district court,” (3) the claimant’s satisfaction, and (4) how
uncertain the award of benefits was and the effort it took to achieve it. Fields v.
Kijakazi, 24 F.4th 845, 854-55 (2d Cir. 2022) (internal quotations omitted).
Here, Seelig requests a fee of $13,402.75, which SSA indicated is 25% of
the auxiliary benefits award. There is no evidence of fraud or overreach in the
Agreement. Thus, the only question is whether an award of $13,402.75 for 42.1
hours of work (or $318.36 per hour) would constitute a windfall. It would not.
There are no objections to Seelig’s expertise or the quality of his representation of
Finnegan. Since 2013, Seelig has represented Finnegan in both administrative and
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federal court proceedings. No concerns about the Finnegan’s satisfaction with his
representation have been raised. Courts have awarded fees at a de facto rate far
higher than $318.36 per hour. See, e.g., Bate v. Berryhill, No. 18-CV-1229 (ER),
2020 WL 728784 at *3 (S.D.N.Y. Feb. 13, 2020) (approving a $1,506.32 hourly
rate); Baron v. Astrue, 311 F. Supp. 3d 633, 637-38 (S.D.N.Y. 2018) (collecting
cases with hourly fees ranging from $1,072.17 to $2,100.00 given efficient and
impressive work from counsel). In addition, the hours spent on the federal case are
reasonable. See Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 & n.2 (C.D. Cal.
2000) (listing multiple cases approving 40 or more hours for obtaining a remand).
Seelig will need to refund his earlier EAJA award of $7,400 awarded to
Finnegan, as “the claimant's attorney must refund to the claimant the amount of the
smaller fee” between EAJA and § 406(b) fee awards. Gisbrecht, 535 U.S. at 789.
CONCLUSION
The motion for attorney’s fees is granted. The Commissioner is ordered to
disburse $13,402.75 to Seelig and any remainder to Finnegan. Upon receipt of
these funds, Seelig is directed to refund the $7,400.00 EAJA award to Finnegan.
SO ORDERED.
_/S/ Frederic Block__________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 10, 2023
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