Savage v. Colvin

Filing 32

MEMORANDUM & ORDER granting 27 Motion for Attorney Fees. Accordingly, Plaintiff's counsel's motion for attorney's fees under Section 406(b) is GRANTED and Mr. Bowes is awarded $26,600 in attorney's fees. Upon receipt of this award, Mr. Bowes shall promptly refund Plaintiff $6,521, representing the EAJA fees already received by counsel. The case remains CLOSED. So Ordered by Judge Joanna Seybert on 6/29/2020. C/ECF (Valle, Christine)

Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 1 of 7 PageID #: 519

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
RICHARD SAVAGE,
Plaintiff,
MEMORANDUM & ORDER
15-CV-5774 (JS)

-againstCOMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Christopher James Bowes, Esq.
Office of Christopher James Bowes
54 Cobblestone Drive
Shoreham, New York 11786
For Defendant:

Candace Scott Appleton, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

SEYBERT, District Judge:
Christopher
plaintiff

Richard

James

Savage

Bowes

(“Mr. Bowes”),

(“Plaintiff”),

moves

counsel

pursuant

to

to
42

U.S.C. § 406(b) (“Section 406(b)”) for an award of attorney’s fees
in the amount of $38,000, less a setoff of $6,521 for the amount
previously received under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, for a net award of $31,479.
Bowes Decl., D.E. 28; Bowes Br., D.E. 29.)

(Mot., D.E. 27;
The Commissioner

opposes the motion and argues that such an award constitutes a
“windfall.” (See generally Comm’r Opp., D.E. 30.) For the reasons
set forth below, the motion is GRANTED in the amount of $26,600.

Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 2 of 7 PageID #: 520

PROCEDURAL HISTORY AND BACKGROUND
On October 6, 2015, Plaintiff commenced this action
seeking reversal of the Social Security Administration (“SSA”)
decision

denying

application.

Plaintiff’s

disability

(See Compl., D.E. 1.)

insurance

benefits

On February 28, 2017, then-

District Judge Joseph F. Bianco1 denied the parties’ cross-motions
for judgment on the pleadings and remanded this matter for further
administrative proceedings.

(Feb. 28, 2017 Order, D.E. 23.)

On

June 1, 2017, Judge Bianco So-Ordered the parties’ stipulation
awarding Plaintiff $6,521 in fees under EAJA and $400 in costs.
(June 1, 2017 Order, D.E 26.) The parties represent that Plaintiff
was awarded disability insurance benefits on remand.
Decl. ¶ 18; Comm’r Opp. at 2.)
August 5, 2019,
$62,596.25

in

the

SSA

informed

attorney’s

fees,

Plaintiff’s past-due benefits.

(See Bowes

By Notice of Award, dated
Plaintiff

that

representing

25

it

withheld

percent

of

(Notice of Award, Bowes Decl., Ex.

C, D.E. 28, at ECF pp. 17-25, at 19-20.)
In

connection

with

this

action,

Plaintiff

signed

a

retainer agreement with his counsel, Mr. Bowes (the “Retainer
Agreement”).
p. 11.)

(See Retainer, Bowes Decl., Ex. A, D.E. 28, at ECF

The Retainer Agreement provides, among other things, that

Plaintiff “agree[s] to pay [Mr. Bowes] a sum equivalent to one-

This matter was reassigned to the undersigned on September 19,
2019.
1

2

Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 3 of 7 PageID #: 521

quarter (i.e., 25%) of all past due benefits at the time of the
award as compensation for legal services.”

(See Retainer.)

Mr. Bowes now seeks approval of $38,000 in attorney’s
fees, less the $6,521 EAJA setoff, as compensation for 38 hours of
work he completed before this Court on Plaintiff’s behalf.
Bowes Decl. ¶¶ 26-28; Bowes Br., D.E. 29, at 2.)

(See

According to

Mr. Bowes’s records, he spent his time on the following tasks:
(1) reviewing

various

files

and

the

administrative

record;

(2) discussing the matter with Plaintiff; (3) drafting and filing
the complaint; (4) drafting the facts and procedural history;
(5) outlining

and

preparing

draft

a

drafting

legal

brief

for

arguments;
filing;

(6) editing

(7) reviewing

and
the

Commissioner’s brief and preparing a reply brief; (8) reviewing
and discussing the Court’s February 28, 2017 Order with Plaintiff;
and (9) drafting a fee motion.
D.E. 28, at ECF p. 13.)

(Time Sheet, Bowe Decl., Ex. B.,

The time sheet reflects that Mr. Bowes

charged an hourly rate of $195.61 that increased to $197.72 and
$200.85 throughout the course of his representation, averaging
$198.06 as an hourly rate.2

(See Time Sheet.)

Under these hourly

rates, Mr. Bowes billed $7,506.87 in fees, exclusive of filing
fees and costs. (See Time Sheet.)

Mr. Bowes charges an hourly rate of $450 per hour in noncontingency cases. (See Bowes Decl. ¶ 32.)
2

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Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 4 of 7 PageID #: 522

Mr. Bowes

argues

that

his

claim

of

$38,000

is

appropriate because it is less than 25 percent of past-due benefits
to

which

he

Plaintiff.

is

entitled

under

(Bowes Decl. ¶¶ 24-27.)

the

Retainer

Agreement

with

The Commissioner opposes the

fee application and argues that an award of $38,000 constitutes a
“windfall.”

(Comm’r Opp. at 2-3.)
DISCUSSION

Under Section 406(b)(1)(A), a district court may award
an attorney who successfully represents a claimant a “reasonable
fee . . . not in excess of 25 percent of the total of the pastdue benefits to which the claimant is entitled.”

Where, as here,

there is a contingency fee arrangement, “the 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
unreasonable.”
1990).

Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.

In determining whether a fee is unreasonable, the Court

should consider: “(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.”
Kazanjian v. Astrue, No. 09-CV-3678, 2011 WL 2847439, at *1
(E.D.N.Y. July 15, 2011) (citing Wells, 907 F.2d at 372).
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Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 5 of 7 PageID #: 523

The proposed fee of $38,000 is within the 25 percent
statutory cap (See Notice of Award) and there are no allegations
of fraud or overreaching with respect to the retainer agreement.
Thus, the only question is whether the proposed fee of $38,000 for
38 hours of work would result in a windfall to Plaintiff’s counsel.
Courts 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.”

Morris v. Saul, No. 17-CV-0259, 2019 WL 2619334,

at *2 (E.D.N.Y. June 26, 2019).
There is no doubt that an award of $38,000 for 38 hours
of work “greatly exceed[s] [Plaintiff’s counsel’s] standard rate.”
Morris, 2019 WL 2619334, at *3.

Moreover, $38,000 for 38 hours of

work results in a de facto hourly rate of $1,000 per hour.

While

Plaintiff’s counsel is correct that courts have approved fee awards
in the social security context that exceed a de facto $500 hourly
rate (Bowes Decl. ¶¶ 28-293), “this Court must exercise its own

The Bowes Declaration contains two paragraphs numbered “28.”
This citation incorporates both “28” paragraphs.
3

5

Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 6 of 7 PageID #: 524

discretion to determine ‘whether the requested amount is so large
as to be a windfall to the attorney.’”

Morris, 2019 WL 2619334,

at *3, n.4 (quoting Wells, 907 F.2d at 372).
The Court finds that the request for $38,000 would
constitute an unreasonable amount of fees to Plaintiff’s counsel.
Instead, the Court finds that an award of $26,600 for 38 hours of
work is reasonable.

While the amount seems significant, the fee

translates into an hourly rate of $700, compensates Mr. Bowes above
the

market

[Mr. Bowes]

rate,
has

and

is

received

“comparable
under

§

to

406(b)

other
in

awards

this

that

Circuit.”

Almodovar v. Saul, No. 16-CV-7419, 2019 WL 7602176, at *3 (S.D.N.Y.
Oct. 4, 2019), R&R adopted, 2019 WL 6207784 (S.D.N.Y. Nov. 21,
2019) (collecting cases where courts in this Circuit approved
Mr. Bowes’s fee application as reasonable); See Gonzalez v. Comm’r
of Soc. Sec., No. 10-CV-2941, 2019 WL 1507843, at *2 (E.D.N.Y.
Apr.

5,

2019).

Indeed,

this

amount

adequately

compensates

Mr. Bowes “for the time that he spent on the 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.” Gonzalez, 2019 WL 1507843, at *2 (E.D.N.Y. Apr. 5, 2019);
Warren v. Astrue, No. 06-CV-2933, 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
6

Case 2:15-cv-05774-JS Document 32 Filed 06/29/20 Page 7 of 7 PageID #: 525

result counsel obtained and the risk of loss inherent in the
retainer’s

contingency

arrangement.”).

Further,

$26,600

“satisfies the underlying policy goal of ensuring that claimants
have qualified counsel representing them in their social security
appeals.”

Gonzalez, 2019 WL 1507843, at *2.
Finally, “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.”
at *2.

Morris, 2019 WL 2619334,

Plaintiff’s counsel recovered $6,521 in attorney’s fees

under the EAJA and must return that amount to Plaintiff from the
payment awarded under Section 406(b).
CONCLUSION
Accordingly, Plaintiff’s counsel’s motion for attorney’s
fees under Section 406(b) is GRANTED and Mr. Bowes is awarded
$26,600 in attorney’s fees.

Upon receipt of this award, Mr. Bowes

shall promptly refund Plaintiff $6,521, representing the EAJA fees
already received by counsel.

The case remains CLOSED.

SO ORDERED

_/s/ JOANNA SEYBERT
__
Joanna Seybert, U.S.D.J.
Dated:

June
29__, 2020
Central Islip, New York

7