Brown v. Astrue
ORDER granting 30 Motion for Attorney Fees. Signed by Hon. Michael A. Telesca on 12/2/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TWYLA BROWN, o/b/o
DECISION and ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Twyla Brown (“Plaintiff”) brought this action on behalf of her
infant son, JB, pursuant to Title XVI of the Social Security Act.
Plaintiff’s attorney, Kenneth R. Hiller, Esq., has filed a motion
pursuant to 42 U.S.C. § 406(b) (“the Section 406(b) Motion”)
requesting attorney’s fees in the sum of $12,281.29 in connection
with his firm’s successful representation of Plaintiff.
On March 12, 2009, Plaintiff filed an unsuccessful application
for Supplemental Security Income (“SSI”) on behalf of JB. After an
administrative hearing on February 16, 2011, an administrative law
judge issued an unfavorable decision on March 9, 2011. The Appeals
Council denied Plaintiff’s request for review on September 4, 2012.
Plaintiff timely instituted this action.
On April 14, 2012, the Court reversed the decision of the
Commissioner of Social Security (“the Commissioner”) denying JB’s
application for SSI and remanded the matter for the calculation and
Commissioner issued a Notice of Award stating that JB’s past-due
benefits total $49,125.16.
Meanwhile, Plaintiff’s counsel applied for and was granted
$7,100.00 in attorney’s fees under the Equal Access to Justice Act
(“EAJA”). However, as of the date of the Section 406(b) Motion,
those funds had not been issued to him.
attorney’s fees in the amount of $12,281.29, which represents
25 percent of the amount of past-due benefits awarded to JB
indicating that he, along with his colleague, Ida Comerford, Esq.,
expended 39.1 hours in the representation of Plaintiff. This yields
an hourly rate of $314. Plaintiff’s counsel indicates that upon
receipt of any attorney’s fees granted in connection with the
previously awarded under the EAJA.
The Commissioner filed a response (Dkt #32) stating that she
does not object to the award of fees or the amount of fees
For the reasons discussed below, the Section 406(b) Motion is
granted in its entirety.
Applicable Legal Principles
Section 406(b) provides in relevant part that “[w]henever a
court renders a judgment favorable to a claimant . . . who was
determine and allow as part of its judgment a reasonable fee for
such representation, not in excess of 25 percent of the total of
the past-due benefits to which the claimant is entitled by reason
of such judgment.” 42 U.S.C. § 406(b)(1)(A).
In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme
Court resolved the circuit-split as to the method to be used to
calculate fees under Section 406(b) in favor of giving effect to
contingent fee agreements between claimants and their attorneys.
“Within the 25 percent boundary” set by Section 406(b), “the
attorney for the successful claimant must show that the fee sought
is reasonable for the services rendered.” Gisbrecht, 535 U.S. at
807 (citation omitted). Furthermore, Section 406(b) “calls for
court review of [contingent fee] arrangements as an independent
check, to assure that they yield reasonable results in particular
cases.” Id. at 807 (footnotes omitted). Thus, it is the district
court’s responsibility to determine whether the requested fees are
unreasonable, as required by the Social Security Act and the
Supreme Court in Gisbrecht.
After ascertaining that a given contingent fee agreement is
within the 25 percent statutory boundary, courts have considered
the following factors in determining whether the resulting fee is
1) whether the requested fee is out of line with the
“character of the representation and the results the
representation achieved;” 2) whether the attorney
unreasonably delayed the proceedings in an attempt to
increase the accumulation of benefits and thereby
increase his own fee; and 3) whether “the benefits
awarded are large in comparison to the amount of time
counsel spent on the case,” the so-called “windfall”
(quoting Gisbrecht, 535 U.S. at 808).
On September 28, 2009, Plaintiff entered into a Fee Agreement
with counsel, pursuant to which she agreed that if she received SSI
benefits on behalf of JB, the attorney fee would be 25 percent of
the past due benefits. See Dkt #30-4. Therefore, the contingent fee
agreement at issue does not go above the 25 percent boundary set by
With regard to the first factor, whether the requested fee is
in line with the “character of the representation and the results
Plaintiff’s counsel’s briefing in this case was effective and
achieved a reversal and remand for payment of benefits—the most
successful result possible for Plaintiff. Thus, this factor weighs
in favor of finding reasonableness.
With regard to the second factor, Plaintiff’s attorneys did
not engage in dilatory litigation tactics or otherwise cause delay
in the proceedings that might have inflated past due benefits and
thus the potential fee award. Indeed, Plaintiff did not submit any
requests for extensions of filing deadlines. The second factor also
weighs in favor of finding reasonableness.
With regard to the “windfall” factor, the Supreme Court in
Gisbrecht provided no clear guidance. See Gisbrecht, 535 U.S. at
809 (Scalia, J., dissenting opn.) (“The Court tells the judge to
commence his analysis with the contingent-fee agreement, but then
to adjust the figure that agreement produces on the basis of
factors (most notably, the actual time spent multiplied by a
antithesis of the contingent-fee agreement. . . .”) (citing id. at
808 (stating that the hours spent by counsel representing the
noncontingent-fee cases” may aid “the court’s assessment of the
reasonableness of the fee yielded by the fee agreement”)). Here,
Plaintiff’s counsel indicates that the rate he normally charges is
$295.00 per hour, and that he has been paid this rate in other
similar cases. Dkt #30-2, p. 4 of 4. Applying the traditional
lodestar analysis to the amount of the requested award yields an
Plaintiff’s counsel’s normal rate. Given that relatively minor
difference, the Court cannot find unreasonableness in the amount of
Furthermore, Plaintiff’s counsel’s firm achieved a very favorable
result for Plaintiff and should be compensated above the normal
hourly fees to recognize the risks of contingent litigation. See
successful litigants, a contingency fee arrangement provides an
incentive to counsel to take on cases that are less than sure
winners.”) (citing Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.
406(b) Motion (Dkt #30) is granted in its entirety. Plaintiff’s
counsel is granted attorney’s fees in the amount of $12,281.29, to
be paid forthwith by the Commissioner. If the Commissioner has not
yet paid Plaintiff’s counsel the $7,100.00 previously awarded under
the EAJA, the Commissioner shall remit payment of that amount at
the same time. Within ten (10) days of Plaintiff’s counsel’s
receipt of the attorney’s fees awarded under the EAJA and Section
406(b), he shall remit $7,100.00 to Plaintiff.
IT IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Rochester, New York
December 2, 2015
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