Dillon v. Colvin
Filing
30
ORDER granting 23 Motion for Attorney Fees in the amount of $21,543.37, which represents 25 percent of the total past due benefits awarded to Plaintiff. The Commissioner is directed to release these funds. Upon receipt of the § 406(b) fee, Plaintiffs counsel shall return to Plaintiff the previously-received $5,751.00 in attorneys fees paid pursuant to the EAJA. Signed by Hon. Michael A. Telesca on 1/22/2020. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JUDY A. DILLON,
Plaintiff,
DECISION AND ORDER
1:16-CV-00425-MAT
-vsANDREW SAUL,1
Commissioner of Social Security,
Defendant.
________________________________________
I.
Introduction
Plaintiff has filed a Motion for Attorney’s Fees, seeking the
amount of $21,543.37, pursuant to 42 U.S.C. § 406(b).
No. 23.
Docket
Defendant filed a response on October 9, 2019, deferring
to the Court on issues relating to the timeliness of Plaintiff’s
motion and the reasonableness of Plaintiff’s fee request.
Docket No. 27.
Docket No. 28.
decision.
See
Plaintiff filed a reply on October 10, 2019.
The matter is now fully submitted and ready for
Docket No. 29.
For the reasons discussed below,
Plaintiff’s motion is granted.
II.
Background
On September 21, 2017, this Court reversed the decision of the
Commissioner of Social Security denying Plaintiff’s application for
Disability Insurance Benefits (“DIB”) and Supplemental Security
1
On June 17, 2019, Andrew Saul became the Commissioner of Social Security.
Accordingly, his name is substituted for the originally-named defendant in this action.
See Fed. R. Civ. P. 25(d).
Income (“SSI”), and remanded the matter for further proceedings.
See Docket No. 18.
On January 9, 2018, the Court signed a
stipulation entered into by the parties, whereby Plaintiff was
awarded $5,751.00 pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, in full satisfaction of her claim
pursuant to the EAJA, for her attorney’s services performed in
connection with this action.
Subsequently,
Administration
indicating
benefits.
on
(SSA)
that
she
Docket No. 22.
June
issued
would
29,
be
the
Plaintiff
to
2019,
a
awarded
Social
Notice
$86,173.48
See Docket Nos. 23-1 at 2 & 23-4.
in
Security
of
Award,
past-due
The Notice of Award
also provided that the SSA was withholding $21,543.37 in past-due
benefits to pay Plaintiff’s attorney’s fees.
See Docket No. 23-4
at 3.
Pursuant
to
the
fee
agreement
Plaintiff,
her
attorney is entitled to 25 percent of her past-due benefits.
See
Docket Nos. 23-2 at ¶ 16 & 23-5.
signed
by
Based on the above-referenced
award of benefits, the amount due to Plaintiff’s attorney pursuant
to the fee agreement is $21,543.37.
at 5.
amount.
See Docket Nos. 23-1 at 5 & 27
Plaintiff’s attorney has requested a fee equal to this
See Docket Nos. 23 & 23-1 at 5.
Plaintiff’s attorney has
already received the sum of $5,751.00 pursuant to the abovementioned EAJA application and stipulation, see Docket No. 23-2 at
¶ 12, and he states that he will refund this fee to Plaintiff once
-2-
the
instant
request
is
granted,
see
Docket
No
23-1
at
8-9.
Plaintiff’s attorney has submitted the Notice of Award (Docket
No. 23-4), the fee agreement (Docket No. 23-5), and his time
records to date (Docket No. 23-2 at ¶ 14).
III. Discussion
Title 42, Section 406(b) provides as follows:
Whenever a court renders a judgment favorable to a
claimant under this subchapter 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)(l)(A).
“When a contingent fee has been agreed to by the parties, the
district court must determine whether the fee is reasonable[,]”
“giv[ing] due deference to the intent of the parties” while “not
blindly approv[ing] every fee request made pursuant to a contingent
agreement.”
Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).
Mathematical calculations are not required, but the district court
should determine whether the contingency percentage is within the
25 percent cap. Id. In addition, it should consider “whether there
has been fraud
or
overreaching
in
making
the
agreement”
and
“whether the requested amount is so large as to be a windfall to
the attorney.”
Id. (citations omitted).
-3-
A.
Timeliness of Plaintiff’s Fee Request
Plaintiff contends that his motion, filed on August 30, 2019,
is timely.
See Docket No. 23-1 at 2.
Plaintiff cites to former L.
R. Civ. P. 5.5(g)(1), which was in place when counsel filed this
motion.
Id.
The Local Rule required that a plaintiff file a
§ 406(b) motion within 65 days of the date of the final notice of
award.2
Id.
Defendant
agrees
that
Plaintiff’s
motion
for
attorney’s fees was filed within the 65-day deadline provided in
former L. R. Civ. P. 5.5(g)(1), see Docket No. 27 at 4 (“Counsel’s
motion for Section 406(b) fees, having been filed on August 30,
2019, was submitted 62 days . . . after Plaintiff’s final June 29,
2019 Notice of Award”), but contends that Plaintiff’s motion was
not filed within the 14-day deadline specified in Sinkler v.
Berryhill, 932 F.3d 83 (2d Cir. 2019). Defendant cites to language
in Sinkler stating, “[t]his decision . . . now clarifies the
application of Rule 54(d)(2)(B)’s fourteen-day filing period in
such circumstances.
This should make the need for such generally
applicable local rules unnecessary in this circuit.”
See Docket
No. 27 at 4-5; see also Sinkler, 932 F.3d at 89 n.6.
2
On January 1, 2020, L. R. Civ. P. 5.5(g)(1) was amended to provide that
counsel “may file a petition for attorney’s fees under 42 U.S.C. § 406(b) in
accordance with the time frame set forth in F.R.Civ.P. 54(d)(2)(B) and Sinkler
v. Berryhill, 932 F.3d 83 (2d Cir. 2019). Unless otherwise established, the
Court will assume that counsel representing the plaintiff in federal court
received notice of the benefits calculation at the same time as the plaintiff.”
L. R. Civ. P. 5.5(g)(1).
-4-
In Sinkler, the Second Circuit held that the 14-day deadline
to file an attorney fee petition provided in Fed. R. Civ. P.
54(d)(2)(B) applies to § 406 motions, and runs from the date the
claimant receives the notice of benefits award.
Sinkler, 932 F.3d
at 89 (§ 406(b) fee request “is subject to the fourteen-day filing
limitation of Rule 54(d)(2)(B) once a party receives notice of a
benefits calculation following a sentence four remand judgment.”).
The Sinkler case was decided on August 2, 2019 - 28 days before
Plaintiff filed his motion for attorney’s fees on August 30, 2019.
Pursuant to Sinkler, Plaintiff’s counsel was required to file his
motion by July 16, 2019 (i.e., 14 days after June 29, 2019,
allowing an additional three days for mailing).
See Sinkler, 932
F.3d at 89 n.5 (“Nothing in this opinion departs from the law’s
presumption that a party receives communications three days after
mailing.”).
Plaintiff filed his motion on August 30, 2019 - 45
days after the July 16, 2019 deadline.
In response, Plaintiff contends that Sinkler and former L. R.
Civ. P.
5.5(g)(1)
are
not
inconsistent
and,
even
if
Sinkler
overrides the local rule, Plaintiff’s motion for attorney’s fees
should be considered timely because she has demonstrated excusable
neglect.
See Docket No. 28 at 1-2.
Plaintiff’s counsel further
explains that he relied on the validity of the local rules, which
were in place at the time he filed his motion.
-5-
Id. at 3.
In Sinkler, the Court clarified its holding, stating that
district
courts
may
circumstances permit.
extend
the
14-day
filing
period
if
the
Specifically, the Court stated:
In holding Rule 54 applicable in these circumstances, we
are mindful that its fourteen-day limitations period is
not absolute.
The rule expressly states that the
specified period applies “[u]nless a statute or a court
order provides otherwise.”
Thus, district courts are
empowered
to
enlarge
that
filing
period
where
circumstances warrant. To be sure, courts cannot adopt
local rules or orders that are inconsistent with federal
rules of procedure. Nevertheless, where, as here, the
rule itself affords courts the discretion to alter a
specified filing time, we will generally defer to a
district court in deciding when such an alteration is
appropriate in a particular case as, for example, when a
party needs more time to assemble and file the
administrative record.
Sinkler, 932 F.3d at 89-90 (internal citations omitted).
As noted
above, it is undisputed that Plaintiff’s motion for attorney’s fees
was filed within the 65-day deadline mandated by former L. R. Civ.
P. 5.5(g)(1).
Given that the law regarding the time requirements
for filing § 406(b) motions was unsettled at the time Plaintiff’s
counsel received the Notice of Award, and because there does not
appear to be prejudice to either party by Plaintiff’s delay in
filing
her
motion,
the
Court
finds
that
an
extension
of
Rule 54(d)’s 14-day filing period is appropriate in this instance.
See, e.g., Lesterhuis v. Commissioner, 408 F. Supp. 3d 292, 295
(W.D.N.Y. 2019) (granting extension to file § 406(b) motion where
“Plaintiff
filed
the
motion
just
-6-
nine
days
after
the
14-day
deadline — a short delay in marked contrast to the six-month delay
in Sinkler.”).
As explained in Russel W. v. Commissioner:
Given the unsettled nature of the law in the Second
Circuit at the time he received the Notice of Award from
the Administration, the Court believes that it was unwise
of counsel to wait nearly three months to file his
renewed application for attorneys’ fees. Nevertheless,
it is clear that even following the district court’s
ruling in Sinkler, there was considerable disagreement
among the district courts in the Second Circuit
concerning the proper timeline for filing Section 406(b)
applications. Courts had regularly held that four months
or less was a “reasonable time” within which to file a
Section 406(b) motion following a final award of
benefits.
Accordingly, based on the particular circumstances
surrounding the instant application as discussed above,
the Court declines to deny Plaintiff’s motion on the
basis of untimeliness.
Russell
W.
v.
Commissioner,
No.
7:16-CV-00008(MAD),
2019
WL
5307315, at *3 (N.D.N.Y. Oct. 21, 2019) (internal citations and
quotations omitted); see also David B. v. Saul, No. 3:17-CV1242(DJS),
2019
Accordingly,
WL
the
6123780,
Court
untimeliness grounds.
will
at
*2
not
(N.D.N.Y.
deny
Nov.
Plaintiff’s
19,
2019).
motion
on
However, Plaintiff’s counsel is on notice
that pursuant to the Second Circuit’s decision in Sinkler, he must
file his § 406(b) motions within Rule 54(d)’s 14-day deadline,
unless he can demonstrate a valid reason for an untimely filing,
such as a delay in receiving the notice of award.
B.
Reasonableness of Plaintiff’s Fee Request
Here, the amount due to Plaintiff’s attorney pursuant to the
fee
agreement
is
$21,543.37.
Plaintiff
-7-
requests
a
fee
of
$21,543.37, which is exactly 25 percent of the total past-due
benefits awarded.
Therefore, the contingency percentage is within
the 25 percent cap authorized by § 406(b).
Given that Plaintiff’s
attorney has not requested an increased fee amount, the Court
concludes that there is no evidence of fraud or overreaching.
Defendant contends that while the fee request does not exceed
25 percent of Plaintiff’s past-due benefits, courts have found the
de facto hourly rate of $697.20 to be a windfall.
No. 27 at 5.
See Docket
With regard to this issue, the Court finds that the
amount requested does not appear to be so large as to be a windfall
to the attorney.
See Gisbrecht v. Barnhart, 535 U.S. 789, 808
(2002); see also Docket No. 23-2 at ¶ 14.
Plaintiff’s counsel has
spent a total of 30 hours preparing Plaintiff’s case before the
federal district court (see id. at ¶ 14), which yields an hourly
rate of $697.20 (see Docket Nos. 23-1 at 8 & 27 at 5), and is
reasonable under the circumstances.
See, e.g., Smith v. Saul,
No. 18-CV-148F, 2020 WL 90761, at *2 (W.D.N.Y. Jan. 8, 2020)
(approving attorney fee award of $22,838.88, which resulted in an
hourly
rate
of
$613.95)
(citing
McDonald
v.
Commissioner,
No. 16-CV-926-FPG, 2019 WL 1375084, at *2-3 (W.D.N.Y. Mar. 27,
2019) (approving attorney’s fees in the amount of $30,602.75 for
29.1 hours of work, which yields an hourly rate of $1,051.64) and
Joslyn v. Barnhart, 389 F. Supp. 2d 454, 455-56 (W.D.N.Y. 2005)
(approving attorney’s fees in the amount of $38,116.50 for 42.75
hours of work, resulting in an hourly rate of $891.61)).
-8-
Plaintiff’s counsel has worked on this case since May 2016.
See Docket No. 23-2 at ¶ 8.
After multiple denials at the
administrative level, see Docket No. 23-2 at ¶¶ 5-6, Plaintiff’s
counsel was ultimately successful in securing over $80,000 in pastdue benefits for Plaintiff.
500 pages long.
The administrative transcript is over
See Docket No. 7.
Plaintiff’s counsel filed a 16-
page motion for judgment on the pleadings (Docket No. 10), as well
as a reply brief (Docket No. 16), raising three separate arguments
in support of Plaintiff’s claim for benefits, which the Court found
to be persuasive.
Accordingly, given the fee agreement and the
history of the case, the Court finds that Plaintiff’s fee request
is reasonable.
IV.
Conclusion
For the reasons discussed above, the Court grants Plaintiff’s
Motion for Attorney’s Fees (Docket No. 23).
Plaintiff is awarded
attorney’s fees in the amount of $21,543.37, which represents
25 percent of the total past due benefits awarded to Plaintiff.
The Commissioner is directed to release these funds.
Upon receipt
of the § 406(b) fee, Plaintiff’s counsel shall return to Plaintiff
the previously-received $5,751.00 in attorney’s fees paid pursuant
to the EAJA.
IT IS SO ORDERED.
S/Michael A. Telesca
______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
January 22, 2020
Rochester, New York
-9-
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