Campbell v. Colvin

Filing 35

ORDER granting 32 Motion for Attorney Fees. Signed by Hon. Michael A. Telesca on 7/3/2019. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MELINDA M. CAMPBELL,
Plaintiff,
-vsANDREW M. SAUL,1 Commissioner of
Social Security,

No. 1:13-CV-775-MAT
DECISION AND ORDER

Defendant.

INTRODUCTION
Represented by counsel, Melinda A. Campbell (“Plaintiff”)
commenced this action pursuant to Title II of the Social Security
Act (“the Act”) seeking review of the final decision of the
Commissioner

of

Social

Security

(“the

Commissioner”

or

“Defendant”), which denied her application for disability insurance
benefits (“DIB”). This Court issued a decision reversing the
Commissioner’s decision and remanding the case for a new hearing.
Following a rehearing, the Commissioner awarded Plaintiff benefits.
Now before the Court is Plaintiff’s Motion for attorney’s fees
pursuant to 42 U.S.C. § 406(b). Counsel is requesting a fee of
$21,133.50.

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The president nominated Andrew M. Saul to be Commissioner of
Social Security and the Senate confirmed his appointment on June 4,
2019, vote number 133. He is substituted pursuant to Fed. R. Civ.
P. 25(d). The Clerk is directed to amend the caption to comply with
this substitution.

PROCEDURAL HISTORY
Plaintiff commenced this action on July 26, 2013. (Docket No.
32 Attachment No. 1 at 2). Plaintiff submitted a Motion for
Judgment on the Pleadings and a Reply Memorandum in response to
Defendant’s Motion for Judgment on the pleadings. Id. The Honorable
Leslie G. Foschio, United States Magistrate Judge, issued a Report
and Recommendation. Id. Plaintiff then submitted objections to the
Report and Recommendation. Id. The Court adopted in part the Report
and Recommendation and remanded the case to the Commissioner. Id.
Plaintiff filed a motion for attorney’s fees under the Equal
Access to Justice Act (“EAJA”) on June 24, 2017, and entered into
a stipulation with United States Attorney David B. Myers. Id. The
Court approved the stipulation awarding an EAJA fee of $7,521.60.
Id. at 3.
The Appeals Council reviewed the Court’s Order on December 21,
2017, and remanded Plaintiff’s case remanded for a hearing before
an ALJ. Id. at 3. ALJ Melissa Lin Jones heard the case on October
2, 2018, and issued a decision favorable to Plaintiff on October
22, 2018. Id. at 3. The decision awarded benefits, and 25 percent
of those benefits, or $21,133.50, was withheld to pay attorney’s
fees. Id. at 3.

APPLICABLE LEGAL PRINCIPLES
Section 406(b) provides in relevant part that “[w]henever a

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court renders a judgment favorable to a claimant. . . who was
represented

before

the

court

by

an

attorney,

the

court

may

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).
“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 v. Barnhart,
535 U.S. 789, 807 (2002) (citation omitted). Section 406(b) also
“calls for court review of [contingent fee] arrangements as an
independent check, to assure that they yield reasonable results in
particular

cases.”

Id.

(footnotes

omitted).

Thus,

it

is

the

district court’s responsibility to determine whether the requested
fees are unreasonable, as required by Social Security Act and
Gisbrecht, supra.
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
reasonable: 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

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awarded are large in comparison to the amount of time counsel spent
on the case,” the so-called “windfall” factor. Joslyn v. Barnhart,
389 F. Supp.2d 454, 456 (W.D.N.Y. 2005) (quoting Gisbrecht, 535
U.S. at 808).

DISCUSSION
A. Reasonableness of the Fee Requested
As an initial matter, the Court notes that the Social Security
Administration’s (“SSA”) Notice of Award states that Plaintiff’s
first

check

would

be

in

the

amount

$64,420.00,

representing

benefits through March 2019. The SSA also stated that it “usually
withheld 25%” to pay any representative’s fee, and that it withheld
$21,133.50 to pay Plaintiff’s representative. Thus, it appears that
her total past due benefits amount was $84,534.00, which amount is
nowhere reflected on the SSA’s Notice of Award. Using the figure of
$84,534.00, the requested amount of $21,133.50 does not exceed the
statutory cap and is permissible under the fee agreement between
Plaintiff and Counsel, which, consistent with the statutory cap,
allows for up to 25 percent of any past due benefits awarded.
With regard to the first Gisbrecht factor, the Court finds
that the requested fee is in line with the “character of the
representation and the results the representation achieved.” Here,
Counsel’s

effective

briefing

secured

a

remand

for

further

administrative proceedings and, ultimately, an award of benefits.

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This factor weighs in favor of finding reasonableness.
Turning to the second factor, Counsel 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. The second factor also weighs in favor of
finding reasonableness.
With regard to whether the fee award constitutes a “windfall,”
the Supreme Court has not provided clear guidance on assessing this
factor but has suggested that conducting what is essentially a
lodestar analysis may be helpful. See Gisbrecht, 535 U.S. at 808
(suggesting that the hours spent by counsel representing the
claimant

and

counsel’s

“normal

hourly

billing

charge

for

noncontingent-fee cases” may aid “the court’s assessment of the
reasonableness of the fee yielded by the fee agreement”). Dividing
the Section 406(b)(1) fee requested ($21,133.50) by the total hours
expended by Counsel (44.1 hours) yields an effective hourly rate of
$479.22.

Although

the

Commissioner

does

not

address

whether

counsel’s requested fee represents a windfall, he does state that
“Courts within this district and within the Second Circuit have
approved comparable hourly rates, and thus, this hourly rate does
not appear to be unreasonable.” See Docket No. 33 at 2 (citing
Heffernan v. Astrue, 87 F. Supp. 3d 351, 356-57 (E.D.N.Y. 2015)
(other citations omitted). The Court agrees.
The Court further observes that a contingent fee outside of

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the Social Security context typically represents the past and
future value of the case. Here, however, the statute provides that
attorney’s

fees

are

based

solely

on

past

due

benefits.

See

42 U.S.C. § 406(b)(1). The value of this case to Plaintiff is
greater than the amount of past due benefits received. In addition,
the value of health care benefits attendant to Title II benefits is
not included in the computation of the fee under Section 406(b)(1).
Counsel, on the other hand, assumed a substantial risk of loss in
taking this case, given that Plaintiff’s claim had been denied at
multiple levels of agency review before the initiation of this
civil action. In this regard, the Court considers the deference
owed to lawful attorney-client fee agreements, Gisbrecht, 535 U.S.
at 793, and the interest in assuring that attorneys continue to
represent clients such as Plaintiff. Id. at 805.
Consideration of all of the Gisbrecht factors warrant a
finding that the requested fee is reasonable, and the Commissioner
does not disagree. Additionally, Counsel has stated that he will
refund the amount of the EAJA fee award to Plaintiff (i.e.,
$7,521.60) should the Section 406(b) application be approved.
(Docket No. 32 Attachment No. 1 at 5). See Gisbrecht, 535 U.S. at
796 (“Fee awards may be made under both prescriptions [in the EAJA
and Section 406(b)], but the claimant’s attorney must ‘refun[d] to
the claimant the amount of the smaller fee.’”) (quoting Act of Aug.
5, 1985, Pub. L. 99–80, § 3, 99 Stat. 186; second alteration in

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original).

B.

Timeliness of the Section 406(b) Motion
The law within the Second Circuit is unsettled regarding the

deadline to file a Section 406(b) motion. The Act does not require
a fee application to be filed within any specific time limit,
“making

the

timeliness

question

somewhat

more

complicated.”

Geertgens v. Colvin, No. 13 CIV. 5133(JCF), 2016 WL 1070845, at *2
(S.D.N.Y. Mar. 15, 2016). The Second Circuit has not yet squarely
addressed the question of what standard should govern the question
of whether a Section 406(b) application is timely filed. Courts in
this District, up until recently, had consistently applied a
reasonableness standard. See, e.g., Jenis v. Colvin, 12-CV-0600A,
2016 WL 624623, at *1 n. 1 (W.D.N.Y. Oct. 26, 2016) (Section 406(b)
application filed four months after notice of award was filed
within a reasonable time and was timely); see also Buckingham v.
Astrue, 07-CV-159-JTC, 2010 WL 4174773, at *1 (W.D.N.Y. Oct. 25,
2010) (granting Section 406(b) application filed 98 days after
notice of award received, without consideration of timeliness); but
see Sinkler v. Berryhill, 305 F. Supp.3d 448, 452 (W.D.N.Y. 2018),
appeal docketed, 18-2044 (2d Cir. July 11, 2018). However, newly
enacted Western District of New York Local Rule 5.5(g)(1) rejects
the 14-day standard and sets a window of 65 days for filing
Section

406(b) applications.

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Counsel represents that his fee petition is timely because the
Notice of Award is dated April 20, 2019, and the instant action was
filed May 16, 2019. See Docket No. 32. Therefore there is no issue
of delay and his Section 406(b) Motion, filed May 16, 2019, is
timely under new Local Rule 5.5, which may be applied, insofar as
just and practicable, to all actions pending as of January 1, 2019.
CONCLUSION
For the reasons set forth above, the Court grants the Section
406(b)(1)

Motion (Docket

No.

32)

in its

entirety

and

awards

Plaintiff attorney’s fees in the amount of $21,133.50. The Court
directs the Commissioner to release the funds withheld from the
benefits awards. Upon receipt of the Section 406(b) fee, Counsel is
directed to remit to Plaintiff $7,521.60, representing the EAJA
fees received in Plaintiff’s case before this Court.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
____________________________________
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED:

July 3, 2019
Rochester, New York

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