Schiebel v. Colvin
DECISION AND ORDERED, that Plaintiffs counsels motion for attorneys fees pursuant to 42 U.S.C. § 406(b)(1) is GRANTED in the amount of $26,831.20; and it is further ORDERED, that the $26,831.20 in attorneys fees shall be paid to Plaint iffs counsel out of the amount that Defendant has withheld from Plaintiffs past-due benefits; and it is further ORDERED, that immediately after receiving the $26,831.20 in attorneys fees, Plaintiffs counsel shall refund Plaintiff the EAJA fee award of $4,829.03. Signed by Senior Judge Lawrence E. Kahn on December 19, 2016. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KEVIN WILLIAM SCHIEBEL,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
DECISION AND ORDER
Presently before the Court is Plaintiff Kevin William Schiebel’s counsel’s motion for
attorney’s fees pursuant to the Social Security Act, 42 U.S.C. § 406(b)(1). Dkt. No. 20
(“Motion”). For the reasons that follow, the Motion is granted.
On November 24, 2014, after a stipulation entered into by both parties, Dkt. No. 14
(“Stipulation”), Magistrate Judge Thérèse Wiley Dancks reversed the Commissioner of Social
Security’s determination that Plaintiff Kevin William Schiebel was not disabled and remanded
for further proceedings, Dkt. Nos. 15, 16. On February 3, 2015, this Court awarded Schiebel’s
counsel attorney’s fees in the amount of $4,829.03 pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. Dkt. No. 19.
On May 25, 2016, Administrative Law Judge John M. Lischak found that Schiebel was
disabled starting October 8, 2010. Dkt. No. 20-2 (“Exhibit A”) at 9. Schiebel and his attorneys
had entered into a contingency fee agreement on April 23, 2014. Dkt. No. 20-4 (“Exhibit C”)
at 1–3. That agreement provided that, if Schiebel’s case was remanded from federal court and his
attorneys successfully represented him on remand by obtaining disability benefits for him, he
would pay his attorneys twenty-five percent of all of his past-due benefits. Id. at 1. Accordingly,
on June 29, 2016, Schiebel received a Notice of Award from the Social Security Administration,
notifying him that the total amount of his past-due benefits for the period between April 2011
and June 2016 was $107,324.80, and that it was withholding twenty-five percent of the award
($26,831.20) in the event that it had to pay Schiebel’s attorneys pursuant to a fee agreement. Dkt.
No. 20-3 (“Exhibit C”) at 1–3.
On July 20, 2016, Schiebel’s counsel moved for attorney’s fees in the amount of
$26,831.20 pursuant to § 406(b)(1). Mot; Dkt. No. 20-1 (“Memorandum”) ¶ 11. Schiebel’s
counsel noted that, in accordance with the applicable law,1 it would return the EAJA fee it had
obtained to Schiebel if the Court awarded fees under § 406(b)(1). Mem. ¶ 11. On July 25, 2016,
the Commissioner filed a letter brief informing the Court that, while she had “no objections to
the Section 406(b) fee motion,” that provision requires the Court to independently examine the
fee award in question for reasonableness. Dkt. No. 21 (“Letter Brief”) at 3. The Commissioner
also noted that the hourly rate reflected by the submissions filed by Schiebel’s counsel was
$975.68. Id. at 2.
“[F]ee awards under both the EAJA and § 406(b) may be awarded, but the claimant’s
attorney must refund the claimant the amount of the smaller fee.” Heffernan v. Astrue, 87 F.
Supp. 3d 351, 354 (E.D.N.Y. 2015) (quoting Devenish v. Astrue, 85 F. Supp. 3d 634, 636
Under the Social Security Act, “a court may award an attorney who represents a
prevailing claimant in a social security case ‘a reasonable fee . . . not in excess of 25 percent of
the total of past-due benefits to which the claimant is entitled.’” Benton v. Comm’r of Soc. Sec.,
No. 03-CV-3154, 2007 WL 2027320, at *1 (E.D.N.Y. May 17, 2007) (quoting § 406(b)(1)). In
determining whether a fee is “reasonable,” a court “must begin with the [fee] agreement, and the
district court may reduce the amount called for by the contingency agreement only when it finds
the amount to be unreasonable.” Barbour v. Colvin, No. 12-CV-548, 2014 WL 7180445, at *1
(E.D.N.Y. Dec. 10, 2014) (quoting Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)). The
court then evaluates several 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.
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). Because “a contingency fee is the freely negotiated expression both of a
claimant’s willingness to pay more than a particular hourly rate to secure effective representation,
and of an attorney’s willingness to take the case despite the risk of nonpayment,” Wells, 907 F.2d
at 371, a court should not reduce the agreed-upon fee without adequate justification, Torres v.
Colvin, No. 11-CV-5309, 2014 WL 909765, at *3 (S.D.N.Y. Mar. 6, 2014) (citing Blizzard v.
Astrue, 496 F. Supp. 2d 320, 325 (S.D.N.Y. 2007)).
As noted above, the fee requested by Schiebel’s counsel is not in excess of twenty-five
percent of the past-due benefits. Ex. C at 1–3. Moreover, there is no indication in the record that
the fee agreement was obtained through fraud or overreaching or that Schiebel’s counsel was
ineffective or created unneeded delay. Accordingly, the only question for the Court is whether the
fee award requested would provide a windfall to Schiebel’s attorney. While the Commissioner
does not oppose Schiebel’s Motion, she does point to the hourly rated implied by the request for
attorney’s fees, suggesting that she views the main issue here as the question whether the fee
award would constitute a windfall. Letter Br. at 2.
In determining whether a given fee award constitutes a windfall, a court should evaluate
1) whether the attorney’s efforts were particularly successful for the
plaintiff, 2) whether there is evidence of the effort expended by the
attorney demonstrated through pleadings which were not boilerplate
and through arguments which involved both real issues of material
fact and required legal research, and finally, 3) whether the case was
handled efficiently due to the attorney’s experience in handling social
Blizzard, 496 F. Supp. 2d at 323. A court may award a fee only for work performed before it, but
“the work performed by the attorney at the agency-level is relevant insofar as it assists the court
in understanding ‘the overall complexity of the case, the lawyering skills necessary to handle it
effectively, the risks involved, and the significance of the result achieved in district court.’”
Benton, 2007 WL 2027320, at *2 (quoting Mudd v. Barnhart, 418 F.3d 424, 428 (4th Cir. 2005)).
With respect to the first factor, there is no question that Schiebel’s attorneys’ efforts were
successful for him. Through their efforts, he managed to obtain past-due benefits in the amount
of $107,324.80 (minus the requested attorney’s fees) in addition to monthly benefits of $1,661.
Ex. B at 1. Moreover, there is significant evidence that Schiebel’s attorneys did not merely
submit boilerplate pleadings, and that instead they expended considerable effort drafting a well4
reasoned and persuasive brief in support of Schiebel’s position. See Dkt. No. 13 (“Plaintiff’s
Brief”). Indeed, an examination of the time sheets submitted by Schiebel’s counsel reveals that
18.4 of the 27.5 hours spent on the case at the district-court level were devoted to researching,
writing, and reviewing the brief. Dkt. No. 20-5 (“Exhibit D”) at 1. Four days after the submission
of the brief, both parties entered into a stipulation agreeing to remand the case, Stipulation, which
provides some evidence that the arguments advanced by Schiebel’s attorneys were effective.
Further, as Schiebel’s counsel points out, the Olinsky Law Group, which represented Schiebel in
this case, has extensive experience in representing Social Security claimants. Mem. ¶ 9. This
experience likely contributed to the efficiency with which Schiebel’s counsel handled the case.
While the hourly rated suggested by the requested fee award ($975.68) does appear high, “to
reject a fee request because the resultant hourly rate is too high serves only to penalize efficiency,
rather than rewarding it.” Torres, 2014 WL 909765, at *5. Also, although the Court cannot award
fees based on this work, Schiebel’s attorneys spent 28.7 hours on his case at the agency level, Ex.
D at 4–6, which is suggestive of the complexity of the case, Benton, 2007 WL 2027320, at *2
(quoting Mudd, 418 F.3d at 428).
Moreover, the hourly rated implied by the requested fee award is in line with those
regularly approved by district courts in this circuit. See, e.g., id. at *4 (“[A] substantial body of
caselaw has awarded rates that approach, if they do not exceed, $1,000.00.”); Kazanjian, 2011
WL 2847439, at *2 (approving a fee award that amounted to an hourly rate of $2,100); Trupia v.
Astrue, No. 05-CV-6085, 2008 WL 858994, at *4 (E.D.N.Y. Mar. 27, 2008) (approving a
requested fee award that came to an hourly rate of $1,714.09); Boyd v. Barnhart, No. 97-CV7273, 2002 WL 32096590, at *3 (E.D.N.Y. Oct. 24, 2002) (awarding a fee that amounted to an
hourly rate of $1324.52). While courts have sometimes reduced fee awards amounting to around
$1,000 an hour, e.g., Whittico v. Colvin, No. 09-CV-907, 2014 WL 1608671, at *5 (N.D.N.Y.
Apr. 22, 2014), those cases are readily distinguishable from the present case. For example, in
Whittico, the court justified its decision to reduce the fee award as follows:
[T]he work that Plaintiff’s counsel expended before this Court was
minimal and, primarily, routine in nature. He did not file a legal brief
in this case regarding the merits of Plaintiff’s claims because the
Court, as a result of the parties’ stipulation, remanded this case
pursuant to sentence six of § 405(g). Furthermore, many of the 12.5
hours that Plaintiff’s counsel expended on work before this Court
involved reviewing decisions or other documents, telephone
conferences, and correspondence; and, in addition, 2.8 of those hours
involved Plaintiff’s motion for fees under the EAJA.
Id. at *6. Here, on the other hand, the work performed by Schiebel’s counsel was not primarily
routine in nature. Instead, as discussed above, most of the time Schiebel’s attorneys spent on this
case at the district-court level involved preparing a thorough and persuasive brief regarding the
merits of Schiebel’s position. Ex. D at 1. This brief was filed with the Court and arguably
contributed to the Commissioner’s decision to stipulate to a remand.
Mindful of “the deference owed to lawful attorney-client fee agreements,” in addition to
“the interest in assuring that attorneys continue to represent clients such as Plaintiff,” Rymer v.
Colvin, No. 12-CV-644, 2016 WL 946666, at *2 (W.D.N.Y. Mar. 14, 2016), the Court finds that
the requested fee award of $26,831.20 is reasonable. Accordingly, the Court grants Schiebel’s
counsel’s Motion and awards attorney’s fees in the amount of $26,831.20. After receiving these
fees, Schiebel’s counsel shall immediately refund Schiebel the EAJA fees, which amounted to
Accordingly, it is hereby:
ORDERED, that Plaintiff’s counsel’s motion for attorney’s fees pursuant to 42 U.S.C.
§ 406(b)(1) is GRANTED in the amount of $26,831.20; and it is further
ORDERED, that the $26,831.20 in attorney’s fees shall be paid to Plaintiff’s counsel out
of the amount that Defendant has withheld from Plaintiff’s past-due benefits; and it is further
ORDERED, that immediately after receiving the $26,831.20 in attorney’s fees,
Plaintiff’s counsel shall refund Plaintiff the EAJA fee award of $4,829.03; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
December 19, 2016
Albany, New York
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