Tamburri v. Colvin

Filing 27

ORDER: For the reasons stated in the attached Memorandum and Order, it is hereby ordered that Plaintiff's motion for attorney's fees under 42 U.S.C. § 406(b) is granted in part and denied in part. Bowes is awarded $8,813.79 in attorney's fees. This case remains closed. Ordered by Judge Pamela K. Chen on 11/18/2019. (Brodziak, Maya)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT TAMBURRI,
Plaintiff,
MEMORANDUM & ORDER
16-CV-5784 (PKC)

- against ANDREW SAUL,1 COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Robert Tamburri brought this action pursuant to the Social Security Act, 42 U.S.C.
§ 405(g), seeking reversal of the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying Plaintiff’s application for Social Security Disability
Insurance Benefits. Presently before the Court is the motion of Plaintiff’s counsel, Christopher J.
Bowes (“Bowes”), for approval of attorney’s fees of $29,400, pursuant to Section 406(b) of the
Social Security Act. For the reasons set forth below, the motion is granted in part and denied in
part, and the Court awards Bowes attorney’s fees in the amount of $8,813.79.
BACKGROUND
On October 17, 2016, Plaintiff commenced this action appealing the Commissioner’s
denial of Plaintiff’s disability insurance benefits application. (Dkt. 1.) On April 20, 2017, Plaintiff

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Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17, 2019.
Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul is automatically substituted
as the Defendant in this action. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public
officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while
the action is pending. The officer’s successor is automatically substituted as a party.”); see also
42 U.S.C. § 405(g) (“Any action instituted in accordance with this subsection shall survive
notwithstanding any change in the person occupying the office of Commissioner of Social Security
or any vacancy in such office.”). The Clerk of Court is respectfully directed to update the docket
accordingly.
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served a motion for judgment on the pleadings (see Dkt. 10), to which the Commissioner
responded by filing a stipulation and proposing an order remanding the case for additional
administrative proceedings on June 2, 2017 (Dkt. 11). On June 3, 2017, the Court granted the
stipulation and remanded the case for further administrative proceedings. (June 3, 2017 Docket
Order.) On September 6, 2017, the Plaintiff filed a motion seeking $5,886.21 in fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Dkt. 13.) The Commissioner
opposed the fee application as untimely. (Dkt. 19.) This Court ruled in favor of the Commissioner,
denying the EAJA fee application. See Tamburri v. Berryhill, No. 16-CV-5784 (PKC), 2018 WL
1175141, at *3 (E.D.N.Y. Mar. 5, 2018).
On remand, Administrative Law Judge David Sunha found Plaintiff disabled within the
meaning of the Social Security Act as of July 27, 2012, his alleged onset date, and awarded
disability insurance benefits to him. (Dkt. 22, ¶ 14; id. at ECF2 16–21.) The Commissioner
withheld $45,745.43 from the award, representing 25% of Plaintiff’s total past due benefits of
$182,9843 (id. ¶ 15), so that Bowes could: (1) petition the Commissioner under Section 406(a) for
approval of a reasonable fee as compensation for services during the proceedings at the agency
level; and (2) seek an award from this Court pursuant to Section 406(b) for the time Bowes
expended representing Plaintiff. See 42 U.S.C. §§ 406(a) and (b).

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Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
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Though this is the amount provided by Bowes, the Court notes that based on the August
6, 2019 Notice of Award, Plaintiff’s total past due benefits were actually $182,983.50 which would
be rounded down to $182,983. (See id. at ECF 19–20; see also id. at ECF 16 (noting that the Social
Security Administration “must round down to the nearest dollar”).) The Court does not find that
this slightly discrepancy changes its calculation of attorney’s fees.
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Bowes now moves for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b). Though
Bowes seeks a contingent attorney’s fees award of $29,400 in connection with 29.4 hours of work
that he undertook on Plaintiff’s behalf in this matter, Bowes seeks a net payment award of
$23,513.79 in recognition that Plaintiff “is entitled to a credit of $5,886.21 in attorney[’s] fees
pursuant to the Equal Access to Justice Act that he likely would have been awarded had [Bowes]
timely filed that petition.” (Dkt. 22, ¶¶ 17–18.) According to Bowes’s time records, he spent 29.4
hours on the following tasks: (1) reviewing the file and interviewing Plaintiff; (2) drafting the
complaint; (3) reviewing the entire record; (4) drafting a statement of facts; (5) drafting arguments;
(6) editing a draft (7) discussing the remand offer with Plaintiff and (8) drafting fee motion papers.
(Dkt. 22, at ECF 14.) Based on Bowes’s time records, his motion seeks an award of attorney’s
fees that would result in an effective hourly rate of $1,000.4
Pursuant to a retainer agreement, Plaintiff agreed to compensate Bowes for legal services
by paying him a contingency fee of 25% of past due benefits awarded to him. (Dkt. 22, at ECF
11–12.) Bowes does not ask this Court to award attorney’s fees in that amount but rather bases
his fee request on a rate of $1,000 per hour less the $5,886.21 EAJA credit to which Plaintiff is
entitled. (Dkt. 22, ¶¶ 18, 24.) The Commissioner does not oppose Bowes’s motion. (Dkt. 26, at
2.)
DISCUSSION
Section 406(b) of the Social Security Act provides that a court may award a “reasonable
fee” “not in excess of 25% of the total of the past-due benefits to which the claimant is entitled.”
42 U.S.C. § 406(b). This 25% cap only applies to an award of attorney’s fees for representation
before a federal court; it does not limit attorney’s fees that may be approved by the Commissioner

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Taking the $5,886.21 EAJA credit into account, Bowes’s hourly rate would be $799.79.
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for representation in agency proceedings. See Culbertson v. Berryhill, 139 S. Ct. 517, 522 (2019)
(“If there is no fee agreement, the agency may set any fee, including a fee greater than 25% of
past-due benefits, so long as the fee is ‘reasonable.’”). The Second Circuit has held that a court’s
determination of whether fees requested under Section 406(b) are reasonable should “begin with
the agreement, and [that] 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).
To determine whether a fee is “unreasonable,” a district court should consider: (i) “whether
the contingency percentage is within the 25% cap”; (ii) “whether there has been fraud or
overreaching in making the agreement”; and (iii) “whether the requested amount is so large as to
be a windfall to the attorney.” Id. at 372 (citation omitted); see also Barbour v. Colvin, No. 12CV-548 (ADS), 2014 WL 7180445, at *1 (E.D.N.Y. Dec. 10, 2014). In addition, if fee awards are
made to a claimant’s attorney under both the EAJA and Section 406(b), the attorney must refund
the claimant the amount of the smaller fee. Barbour, 2014 WL 7180445, at *2 (citing Porter v.
Comm’r of Soc. Sec., No. 06-CV-1150 (GHL), 2009 WL 2045688, at *3 (N.D.N.Y. July 10,
2009)); see also Wells v. Bowen, 855 F.2d 37, 48 (2d Cir. 1988) (“Once appropriate fees under 42
U.S.C. § 406(b) are calculated, the district court should order [the attorney] to return the lesser of
either that amount or the EAJA award to his clients.”).
Here, Bowes’s proposed fee of $29,400 is equivalent to approximately 16% of the past due
balance that Plaintiff was awarded. Since there are no allegations or indications of fraud or
overreaching with respect to the retainer agreement, the only question for the Court is whether a
fee of $29,400 for 29.4 hours of work would result in a windfall to Bowes.

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Courts in this Circuit have identified several relevant considerations as to whether a
requested award of attorney’s fees would constitute a windfall: (1) whether the attorney’s efforts
were particularly successful for the plaintiff; (2) whether the effort expended by the attorneys is
demonstrated through non-boilerplate pleadings and arguments that involved both real issues of
material fact and required legal research; and (3) whether the case was handled efficiently due to
the attorney’s experience in handling social security cases. Rowell v. Astrue, No. 05-CV-1592
(CBA) (JMA), 2008 WL 2901602, at *1 (E.D.N.Y. July 28, 2008). In addition, “[a]lthough the
reviewing court may not use the lodestar method to calculate the fee due, a record of the number
of hours spent on the case in federal court may assist a court in determining whether a given fee is
reasonable.” Benton v. Comm’r of Soc. Sec., No. 03-CV-3154 (ARR), 2007 WL 2027320, at *2
(E.D.N.Y. May 17, 2007).
Bowes’s proposed award of $29,400 for 29.4 hours of work would result in an effective
hourly rate of $1,000 per hour.5 Bowes asserts that his non-contingent hourly rate is $450. (Dkt.
22, ¶ 29.) Thus, an award of $29,400 for 29.4 hours of work would greatly exceed Bowes’s
standard rate. Furthermore, courts in this Circuit have repeatedly found that de facto rates above
$500 per hour in social security cases are unreasonable. See Mitchell v. Astrue, No. 09-CV-83
(NGG) (SMG), 2019 WL 1895060, at *6 (finding a $500 de facto hourly rate would provide
reasonable compensation for work performed by claimant’s attorneys); see also Brown v. Colvin,
No. 15-CV-4823 (SDA), 2018 WL 6061199, at *4 (S.D.N.Y. Nov. 20, 2018) (reducing proposed
fees of $18,675 for 24.9 hours of work, resulting in an effective hourly rate of $750, to $12,450 in

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Though Bowes’s hourly rate lowers to $799.79 when the $5,886.21 EAJA credit is
considered, the Court finds that an amount based on this hourly rate would nonetheless constitute
a windfall for reasons discussed infra. Furthermore, given that Plaintiff was not awarded these
fees as a result of Bowes’s error, see Tamburri, 2018 WL 1175141, at *2, the Court does not find
it appropriate to consider this credit in determining what amount of fees to award to Bowes.
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total fees, or an effective hourly rate of $500); Arroyo v. Comm’r of Soc. Sec., No. 14-CV-3513
(PKC), 2018 WL 2088013, at *2 (E.D.N.Y. May 4, 2018) (reducing proposed fees of $14,000 for
19.7 hours of work, resulting in an effective hourly rate of $710.66, to $9,850 in total fees or an
effective hourly rate of $500); Benton v. Comm’r of Soc. Sec., No. 03-CV-3154 (ARR), 2007 WL
2027320, at *2–3 (E.D.N.Y. May 17, 2007) (reducing proposed fees of $44,694.75 for 33.5 hours
of work, resulting in an effective hourly rate of $1,334.17, to $15,000 in total fees or an effective
rate of $447.76).6
Consequently, the Court finds that Bowes’s request for $29,400 for 29.4 hours of work in
this case would result in an unreasonable fee for his representation of Plaintiff in this matter.
Instead, the Court finds that an award of $14,700 would adequately compensate Bowes for the
time that he spent on this case, the risks that he accepted in undertaking the representation of
Plaintiff on a contingency basis, and the successful result he obtained for his client. This fee
amount, which translates into an hourly rate of $500, provides reasonable compensation for the
legal services provided by Bowes. Lastly, the Court’s award of $14,700 satisfies the underlying
policy goal of ensuring that claimants have qualified counsel representing them in their social
security appeals. See, e.g., Muniz v. Astrue, No. 09-CV-3954 (ARR), 2011 WL 5563506, at *6

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Bowes is correct that courts in this Circuit have also approved fee awards in the social
security context that exceed a de facto $500 hourly rate. See, e.g., Barbour, 2014 WL 7180445,
at *2 (E.D.N.Y. Dec. 10, 2014) (approving $26,784 award for 44.7 hours of work for an effective
hourly rate of $599); Warren v. Astrue, No. 06-CV-2933 (CBA), 2011 WL 5402493, at *1
(E.D.N.Y. Nov. 7, 2011) (“[A]lthough $25,000 is a substantial sum for 38 hours of work [i.e., $657
hourly rate], it does not constitute a windfall when balanced against the excellent result counsel
obtained and the risk of loss inherent in the retainer’s contingency arrangement.”). Indeed, other
courts in this Circuit have awarded Bowes a fee that constitutes an hourly rate above $500. See,
e.g., Genovese v. Colvin, No. 13-CV-3338 (FB), 2015 WL 4662505, at *2 (E.D.N.Y. Aug. 6, 2015)
(awarding $31,057.50 in attorney’s fees to Bowes for 44.6 hours of work for an effective hourly
rate of $696.36). However, this Court must exercise its own discretion to determine “whether the
requested amount is so large as to be a windfall to the attorney.” Wells, 907 F.2d at 372.
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(E.D.N.Y. Nov. 15, 2011) (“Further, an award of fees of this sum—amounting to an hourly rate of
$333.33—satisfies the underlying policy goal of enabling social security claimants to secure
quality legal representation.”). Furthermore, in light of the $5,886.21 EAJA credit Plaintiff is
entitled to, the Court reduces Bowes’s award by that amount resulting in a net award of $8,813.79.
CONCLUSION
For the foregoing reasons, it is hereby ordered that Plaintiff’s motion for attorney’s fees
under 42 U.S.C. § 406(b) is granted in part and denied in part. Bowes is awarded $8,813.79 in
attorney’s fees. This case remains closed.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: November 18, 2019
Brooklyn, New York

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