Lafrance v. Berryhill

Filing 32

MEMO ENDORSEMENT adopting 31 Report and Recommendations, 23 Motion for Attorney Fees filed by Marguerite Lafrance. ENDORSEMENT: No objections having been received or extensions granted, the record is hereby closed. I accept the Re port as the opinion of the court and adopt the Recommendation. The Clerk shall enter judgment for attorney's fees in the amount of $13,526.87. (Signed by Judge Colleen McMahon on 9/20/2019) (mro) Transmission to Orders and Judgments Clerk for processing.

Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 1 of 8

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MARGUERITE LAFRANCE,
17-CV-04709 (CM)(SN)

Plaintiff,

REPORT AND
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SARAH NETBURN, United States Magistrate Judge.

TO THE HONORABLE COLLEEN MCMAHON, United States Chief District Judge:
Plaintiff commenced this social security action on June 21, 2017. ECF No. 1. On January
2, 2019, Plaintiffs counsel, Christopher James Bowes, filed a motion for attorney's fees under
42 U.S.C. § 406(b). ECF No. 23. This motion was referred to my docket on May 2, 2019. ECF
No. 28. For the reasons that follow, Bowes's motion should be granted.

BACKGROUND
Plaintiff filed an application for disability benefits on March 13, 2014. ECF No. 24,
Declaration of Christopher James Bowes ("Bowes Deel."), ,r 4. On November 28, 2016, an
administrative law judge ("ALJ") determined that Plaintiff was not entitled to benefits. Id., ,r 7.
On April 19, 2017, the Appeals Council denied Plaintiffs request for review of the ALJ' s
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Andrew M. Saul was sworn in as the Commissioner of Social Sec~yeon June 17, 2019. Pursuant to
Rule 25 of the Federal Rules of Civil Procedure, Saul is automati9<11ly substituted as the Defendant in this
action. Fed. R. Civ. P. 25(d) ("An action does not abate when a tiblic officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while e action is pending. The officer's

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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 2 of a

Thereafter, in June 2017, Plaintiff retained Bowes to pursue Plaintiff's claim in federal
court. Bowes Deel., ,r 9. Pursuant to Bowes's retainer agreement, Plaintiff agreed to pay Bowes
25 percent of any past-due benefits as payment for Bowes's services. Id. & Exhibit A. If benefits
were not secured, no fees were due. Id.
Plaintiff filed her complaint on June 21, 2017. ECF No. 1. Following the Commissioner's
answer, but before Plaintiff had filed a motion for judgment on the pleadings, the Commissioner
offered to remand Plaintiffs claim for additional administrative proceedings. Bowes Deel., ,i 10.
The parties submitted a stipulation and proposed order, which was issued by the Court on April
18, 2018. ECF No. 16.
On remand, a different ALJ found that Plaintiff was entitled to disability benefits since
December 2013. Bowes Deel., fl 17, 18. The Social Security Administration ("SSA") issued a
Notice of Award ("NOA") to Plaintiff on December 6, 2018, and sent a copy of the award to
Bowes on December 19, 2018. Id. at Exhibit C.
Bowes filed this motion on January 2, 2019. ECF No. 23. He seeks $17,500 in attorney's
fees, less the $3,973.13 already awarded pursuant to the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2412, for a net fee of $13,526.87.

LEGAL STANDARD
Three statutes authorize attorney's fees in social security actions. 42 U.S.C. § 406(a)
compensates attorneys fo; their representation at the administrative level; 42 U.S.C. § 406(b)
compensates attorneys for representation before federal courts; and the EAJA provides additional
fees if the Commissioner's position was not "substantially justified." Gisbrecht v. Barnhart, 535
U.S. 789, 794-96 (2002). Section 406(b), invoked her,e, provides in part:
Whenever a court renders a judgment favorable to a claimant ...
who was represented before the court by an attorney, the court may

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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 3 of a

. . . allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the pastdue benefits to which the claimant is entitled by reason of such
judgment.
42 U.S.C. 406(b)(l)(A). Courts should enforce contingent-fee arrangements so long as they are
reasonable. See Wells v. Sullivan, 907 F.2d 367,373 (2d Cir. 1990).

DISCUSSION
I.

Procedural Posture
Bowes can recover fees under the current procedural posture. Plaintiffs federal claim

was remanded to the Commissioner for further administrative proceedings, and the ALJ
subsequently awarded Plaintiff retroactive benefits. Bowes Deel., ,r,r 11, 17 & Exhibit C. The
Court of Appeals for the Second Circuit has not addressed whether an attorney can recover fees
in these circumstances i.e., when the district court remands for further proceedings without an
award of benefits.
The clear majority of courts, however, have answered this question in the affirmative.
Specifically, these courts have held that § 406(b) allows the district court to award fees in cases
of remand so long as the plaintiff is eventually awarded benefits, either at the agency level or
through further judicial proceedings. See, e.g., McGraw v. Barnhart, 450 F.3d 493, 503 (10th
Cir. 2006); Bergen v. Commissioner of Social Security, 454 F.3d 1273, 1277 (11th Cir. 2006);
Rose v. Barnhart, No. 01-CV-1645 (KMW) (RLE), 2007 WL 549419, at *3 (S.D.N.Y. Feb. 16,
2007). As a result, because the ALJ awarded Plaintiff benefits after her case was remanded,
Bowes can recover attorney's fees under § 406(b).

II.

Timeliness
Recently, the Court of Appeals held that, pursuant to Rule 54 of the Federal Rules of

Civil Procedure, a fee application under§ 406(b) must be filed within 14 days after the entry of

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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 4 of 8

judgment. Sinkler v. Berryhill, No. 18-2044-CV, 2019 WL 3510486, at * I (2d Cir. Aug. 19,
2019). As the court noted, however, a practical problem arises with filing a motion within that
period: § 406(b) caps attorney's fees at 25% of the benefits award, but the Commissioner
typically does not calculate the amount of past-due benefits until months after the decision to
remand. Id. at *3. To avoid imposing a "deadline that cannot be met," the court applied the
doctrine of equitable tolling to extend the time to file a fee motion until I 4 days after the
claimant is notified of the amount of any benefits award. Id. at * 1.
Here, Bowes filed a motion for attorney's fees on January 2, 2019. ECF No. 23. This is
14 days after the SSA sent Bowes the Notice of Award, but 27 days after the SSA sent the NOA
to Plaintiff. See Bowes Deel., ~ 18 & Exhibit C. As a result, under a narrow reading of Sinkler,
Bowes's motion may be untimely. The court held that the 14-day filing period starts to run
"when the claimant receives notice of the benefits calculation." S inkier, 2019 WL 3 510486, at
*I, 6 (emphasis added).
The Court doubts whether such a rigid interpretation of the equitable tolling doctrine is
warranted. In Walker v. Astrue, cited favorably in Sinkler, the Third Circuit held that "the
application of the filing deadline is tolled until the notice of award is issued by the
Commissioner, and counsel is notified of that award." 593 F.3d 274, 280 (3d Cir. 20 I 0)
(emphasis added). Moreover, in rejecting an alternative approach, the court in Sinkler indicated
that the relevant date is when counsel, not the claimant, is notified of the benefits calculation.
See Sinkler, 2019 WL 3510486, at *3 ("Once counsel receives notice of the benefits award ...
there is no sound reason not to apply [Rule 54's] fourteen-day limitations period to a§ 406(b)
filing.") (emphasis added).

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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 5 of 8

In any event, the Court does not need to decide the proper interpretation of Sinkler at this

time. Even assuming the filing period began to run when Plaintiff received the NOA, Bowes's
application should still be deemed timely submitted. The deadlines imposed by Rule 54 do not
apply if a "court order provides otherwise." Fed. R. Civ. P. 54(d)(2)(B). As a result, and as noted
in Sinkler, district courts can "enlarge the filing period where circumstances warrant," and the
Court of Appeals will "generally defer to a [lower court] in deciding when such an alteration is
appropriate." Sinkler, 2019 WL 3510486, at *5.
Such an extension is warranted here. For reasons unexplained in the record, the SSA did
not send Bowes the Notice of Award until December 19, 2018, nearly two weeks after the NOA
was mailed to Plaintiff. Bowes Deel., Exhibit C. Without the Notice of Award, Bowes could not
file a motion for attorney's fees because he did not know the amount of past-due benefits. Once
the SSA provided that information, Bowes promptly submitted his application to the Court.
Given that Bowes did not cause the delay in receiving the NOA fee motion soon after that document was obtained -

and given that he submitted a

the deadline under Rule 54 should be

extended 13 days from December 20, 2018, until January 2, 2019, and Bowes's motion should
be deemed timely submitted.

III.

Reasonableness of the Fee Award
In evaluating the reasonableness of a contingency fee, a court should determine: ( 1)'that

the fee is within the 25% statutory cap; (2) whether there has been fraud or overreaching in
making the contingency agreement; and (3) whether the fee amount is so large that it constitutes
a windfall to the attorney. Cahill v. Colvin, No. 12-CV-9445 (PAE) (MHD), at *I (S.D.N.Y.
Sept. 2, 2016) (citing Wells, 907 F.2d at 372). Fee awards may be made under both§ 406(b) and

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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 6 of 8

the EAJA, but the attorney must give the smaller fee to the client. See Gisbrecht. 535 U.S. at
796.
Applying these standards, the Court recommends that the requested fee is reasonable. The
Commissioner awarded Plaintiff$124,622 in past-due benefits, which means that§ 406(b) caps
any award of attorney's fees at $31. 155.50. Bowes Deel.,

,r,r 22, 23 & Exhibit C. Because Bowes

seeks only $17,500 in fees, his request is well-below the statutory maximum. In addition, the
retainer agreement is a straightforward, one-page document that was executed before the filing of
Plaintiffs complaint. Id. at Exhibit A. The agreement plainly lays out Plaintiff's obligations
upon a favorable outcome, and there is no indication that the agreement is the product of fraud or
overreaching. Therefore, unless the requested fee results in a windfall to counsel, Bowes's
motion should be granted.
The requested fee does not constitute a windfall to counsel. Bowes seeks an award of
attorney's fees in the amount of $17,500 for 19.4 hours of work. Bowes Deel., ,r,r 24, 26. This is
equivalent to an hourly rate of $902.06. Although this amount appears significant relative to the
hours worked, it is comparable to other awards that Bowes has received under§ 406(b) in this
Circuit. See, e.g., Ibbetson v. Saul, No. 14-CV-7824 (KMK) (JCM). 2019 WL 3208432, at *3
(S.D.N.Y. June 25, 2019), adopted by, 2019 WL 3202998 (S.D.N.Y. July 16, 2019) (approving
an effective hourly rate of $838.93); Nieves v. Colvin, No. 13-CV-1439 (WHP) (GWG), 2017
WL 6596613, at *2-3 (S.D.N.Y. Dec. 26, 2017), adopted by, 2018 WL 565720 (S.D.N.Y. Jan.
24, 2018) (approving an effective hourly rate of$1,009.11); Mills v. Berryhill, No. 15-CV-5502
(DLI). 2019 WL 1507923, at *2 (E.D.N.Y. Apr.5.2019) (approving an effective hourly rate of
$1,007.78).

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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 7 of 8

Bowes obtained positive results for his client, securing a remand to the Commissioner for
further proceedings. Given the risk of loss assumed in taking a case on a contingency basis and given that Bowes seeks significantly less than the statutory maximum -

his fee award is

reasonable. The Court also notes that 19.4 hours is well-within the normal range of hours
reasonably expended on a social security case. See Borns v. Astrue, No. 09-CV-4723 (PAC)
(RLE), 2012 WL 4479006, at *3 (S.D.N.Y. Sept. 28, 2012) ("Although some courts in this
circuit find that twenty to forty hours is a reasonable amount of time to spend on routine social
security cases, fees have regularly been awarded far in excess of this amount."). In addition, the
more efficient the attorney, the fewer hours he will spend on a task, thus increasing the hourly
rate ifhe invokes his contingency agreement. Thus, "to reject a fee request because the resultant
hourly rate is too high serves only to penalize efficiency, rather than rewarding it." Torres v.
Colvin, No. 11-CV-5309 (JGK) (MHD), 2014 WL 909765, at *5 (S.D.N.Y. Feb. 4, 2014),
adopted by (S.D.N.Y. Mar. 6, 2014) (approving an effective hourly rate of $1,000 for Bowes). 2
CONCLUSION
For the foregoing reasons, the Court recommends granting Bowes' s motion for attorney's
fees under 42 U.S.C. § 406(b). Bowes should be awarded $17,500 in fees, less the $3,973.13
already received under the EAJA, for a net award of $13,526.87.

DATED:

August 26, 2019
New York, New York

*

S~HNETBURN
United States Magistrate Judge

*

2

*

Some courts in this Circuit have limited the combined fees under§§ 406(a) and 406(b) to 25% of a
plaintiff's past due benefits. See Cardenas v. Astrue, No. 12-CV-6760 (AJN), 2016 WL 1305988, at *2
(S.D.N.Y. Mar. 31, 2016) (discussing a split in authority). The Supreme Court has recently foreclosed this
inquiry, holding that the Social Security Act does not impose a 25% cap on aggregate fees. Culbertson v.
Berryhill, 139 S. Ct. 517, 519 (2019).
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Case 1:17-cv-04709-CM-SN Document 31 Filed 08/26/19 Page 8 of 8

NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation
to file written objections pursuant to 28 U.S.C. § 636(b)(I) and Rule 72(b) of the Federal Rules
of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service
is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's
objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such
objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the
chambers of the Honorable Colleen McMahon at the United States Courthouse, 500 Pearl Street,
New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(l); Fed. R.
Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be
addressed to Judge McMahon. The failure to file these timely objections will result in a waiver
ofthose objections for purposes of appeal. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 6(a), 6(d),
72(b); Thomas v. Arn. 474 U.S. 140 (1985).

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