Morris v. Colvin

Filing 26

ORDER: For the reasons stated in the attached Memorandum and Order, the Court grants in part and denies in part 22 Bowes's motion for attorney's fees. Bowes is awarded $16,250 in attorney's fees. Upon receipt of this award from the government, Bowes shall promptly refund Plaintiff with $6,500, which represents the EAJA fees already received by counsel. Ordered by Judge Pamela K. Chen on 6/26/2019. (Knapp, Cody)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
GARY MORRIS,
Plaintiff,
MEMORANDUM & ORDER
17-CV-259 (PKC)

- against ANDREW M. SAUL, 1 Commissioner of Social
Security,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Plaintiff Gary Robert Morris commenced this action pursuant to the Social Security Act,
42 U.S.C. § 405(g), seeking reversal of the decision of Carolyn Colvin, the then-Acting
Commissioner of the Social Security Administration (“SSA”), denying his application for Social
Security disability insurance benefits. Presently before the Court is the motion of Plaintiff’s
counsel, Christopher James Bowes (“Bowes”), for approval of attorney’s fees of $30,000 pursuant
to 42 U.S.C. § 406(b). 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 $16,250.
BACKGROUND
On January 17, 2017, Plaintiff commenced this action appealing the SSA’s denial of his
disability insurance benefits application. (See Complaint, Dkt. 1.) On January 1, 2018, Plaintiff

1

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.”).

filed a motion for judgment on the pleadings (see Plaintiff’s Motion, Dkt. 14), and on January 5,
2018, the government filed a cross-motion for judgment on the pleadings (see Commissioner’s
Motion, Dkt. 16). On March 5, 2018, the Court granted Plaintiff’s motion for judgment on the
pleadings and remanded the case to the SSA for further proceedings. (See March 5, 2018 Order,
Dkt. 19.) On May 8, 2018, the parties stipulated, and the Court ordered, that Plaintiff would be
awarded $6,500 for attorney’s fees, $21 for expenses, and $400 in court costs under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (See Stipulation Regarding Attorney’s Fees,
Dkt. 21-1; see also May 8, 2018 Order.)
On remand, Plaintiff was awarded disability insurance benefits.

(Declaration of

Christopher James Bowes (“Bowes Decl.”), Dkt. 23, at ECF 2 3 ¶¶ 13–14.) As required by the
Social Security Act, the Commissioner withheld $45,164.88, equal to 25% of the total past-due
benefits payable to Plaintiff. (See Notice of Award, Dkt. 23, at ECF 16, 18 (guaranteeing a
$135,494.62 lump sum payment to Plaintiff, while withholding $45,164.88).) This amount was
withheld so that Plaintiff’s counsel could: (1) petition the SSA under 42 U.S.C. § 406(a) for
approval of a reasonable fee as compensation for services during proceedings at the agency level;
and (2) seek an award from this Court pursuant to 42 U.S.C. § 406(b) for the time he expended
representing Plaintiff in federal court. See 42 U.S.C. §§ 406(a)–(b).
Bowes now moves for an award of attorney’s fees pursuant to § 406(b) in the amount of
$30,000, as compensation for 32.5 hours of work that he undertook before this Court on behalf of
Plaintiff. (See Motion for Attorney’s Fees, Dkt. 22.) According to Bowes’s records, he spent this
time on the following tasks: (1) reviewing various files and the entire record; (2) discussing the

2

Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
2

appeal with Plaintiff; (3) drafting and filing the complaint; (4) drafting a statement of the facts and
procedural history; (5) drafting legal arguments; (6) editing a draft brief and preparing it for filing;
(7) reviewing the Commissioner’s brief; (8) reviewing the Court’s March 5, 2018 Order and
discussing it with Plaintiff; and (9) drafting a letter to the government requesting an award of fees
under the EAJA. (See Bowes’s Time Records, Dkt. 23, at ECF 14.) Bowes’s time records also
document an average hourly rate of $201.30 for the time spent working on Plaintiff’s case. (See
id.) Under this hourly rate, Bowes fees would be $6,542.25. 3 (Id.)
Before filing his appeal of the Commissioner’s decision denying disability insurance
benefits, Plaintiff agreed to pay Bowes a contingency fee of 25% of all past-due benefits as
compensation for legal services. (See Retainer Agreement, Dkt. 23, at ECF 11–12.) 25% of
$180,659.50 is $45,164.88. Bowes supports his motion for attorney’s fees by arguing that his
claim of $30,000 is less than the 25% of past-due benefits to which he is entitled under the retainer
agreement. (See Plaintiff’s Brief, Dkt. 24, at 4.) The government opposes Bowes’s fee application,
arguing that an award of $30,000 to Bowes would constitute a “windfall.” (Commissioner’s
Opposition, Dkt. 25, at ECF 4.)
DISCUSSION
Section 406(b)(1)(A) 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)(1)(A). 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 for representation in agency proceedings pursuant to Section 406(a). See

3

Despite the rate listed on his time records for this case, Bowes states that his hourly rate
for non-contingency representation in social security cases is $450 per hour. (See Bowes Decl.,
Dkt. 23, at ECF 7 ¶ 27.)
3

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.’” (quoting 42 U.S.C. § 406(a)(1)); see also id. at 523 (“[T]he 25% cap in §
406(b)(1)(A) applies only to fees for court representation, and not to the aggregate fees awarded
under §§ 406(a) and (b) . . . .”). The Second Circuit has held that a court’s determination of whether
fees requested under § 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: (1) “whether
the contingency percentage is within the 25% cap”; (2) “whether there has been fraud or
overreaching in making the agreement”; and (3) “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-00548 (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 § 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. 8:06-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 $30,000 is within the 25% cap, which is $45,164.88.
(Notice of Award, Dkt. 23, at ECF 16, 18; see also Bowes Decl., Dkt. 23, at ECF 5 ¶ 19, 22.)
Since there are no allegations of fraud or overreaching with respect to the retainer agreement, the

4

only question for the Court is whether the proposed fee of $30,000 for 32.5 hours of work would
result in a windfall to Bowes.
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 attorney 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. See Rowell v. Astrue, No. 05-CV-1592
(CBA) (JMA), 2008 WL 2901602, at *1 (E.D.N.Y. July 28, 2008) (quoting Trupia v. Astrue, No.
05-CV-6085 (SJF), 2008 WL 858994, at *4 (E.D.N.Y. Mar. 27, 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, *2
(E.D.N.Y. May 17, 2007).
Here, Bowes seeks an award of $30,000 for 32.5 hours of work, resulting in an effective
hourly rate of $923.07. As Bowes has represented that his regular hourly rate for non-contingency
social security cases is $450 per hour (see Bowes Decl., Dkt. 23, at ECF 7 ¶ 27), an award of
$30,000 for 32.5 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 Sweda v. Berryhill, No. 16-CV-6236 (PKC), 2019 WL 2289221,
(E.D.N.Y. May 28, 2019) (reducing proposed fees of $23,565 for 34.9 hours of work, resulting in
an effective hourly rate of $675, to $17,450 in total fees, or an effective hourly rate of $500);
Mitchell v. Astrue, No. 09-CV-83 (NGG) (SMG), 2019 WL 1895060, at *6 (E.D.N.Y. Apr. 29,

5

2019) (reducing proposed fees of $20,000 for 2.8 hours of work, resulting in an effective hourly
rate of $7,142.86, to $1,400 in total fees, or an effective hourly rate of $500); 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 total fees, or an effective hourly rate of $500); Arroyo v. Comm’r of Soc. Sec., No. 14CV-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., 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 hourly rate of $447.76). 4
Consequently, the Court finds that Bowes’s request for $30,000 as compensation for 32.5
hours of work in this case would result in an unreasonable fee for Bowes based on his
representation of Plaintiff in this matter. Instead, the Court finds that an award of $16,250 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. Furthermore, this fee amount, which translates into an effective hourly rate

4

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 v. Colvin, No. 12-CV00548 (ADS), 2014 WL 7180445, at *2 (E.D.N.Y. Dec. 10, 2014) (approving $26,784 award for
44.7 hours of work, 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., an effective hourly rate of $657,] 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.”). 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.
6

of $500, provides reasonable compensation for the legal services provided by Bowes. Lastly, the
Court’s award of $16,250 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, 09CV-3954 ARR, 2011 WL 5563506, at *6 (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.”).
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 Bowes is awarded $16,250 in attorney’s fees.
Upon receipt of this award from the government, Bowes shall promptly refund Plaintiff with
$6,500, which represents the EAJA fees already received by counsel. This case remains closed.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: June 26, 2019
Brooklyn, New York

7