Walkowiak v. Berryhill
Filing
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DECISION AND ORDER IT HEREBY IS ORDERED, that counsel's Amended Motion for Attorney Fees in the amount of $25,962.13 under 42 U.S.C. § 406 (b)(1)(A) (Docket No. 23) is GRANTED. FURTHER, that counsel is directed to refund to Plaintiff the $4,873.91 EAJA award within 14 days of the entry date of this Decision and Order. SO ORDERED. Signed by William M. Skretny, United States District Judge on 11/22/2019. (JCM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTINE WALKOWIAK,
Plaintiff,
v.
DECISION AND ORDER
17-CV-93S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Plaintiff Christine Walkowiak is a prevailing party in this social security benefits
action. Presently before this Court is Plaintiff=s counsel=s Amended Motion for Attorney
Fees under 42 U.S.C. ' 406 (b)(1)(A). (Docket No. 23.) Defendant does not oppose
the motion but raises timeliness concerns. (Docket No. 27.)
Forty-two U.S.C. ' 406 (b)(1)(A) 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, and
the Commissioner of Social Security may, notwithstanding the
provisions of section 405(i) of this title, but subject to
subsection (d) of this section, certify the amount of such fee
for payment to such attorney out of, and not in addition to, the
amount of such past-due benefits. In case of any such
judgment, no other fee may be payable or certified for
payment for such representation except as provided in this
paragraph.
The United States Court of Appeals for the Second Circuit has recently clarified
that § 406 (b) motions must be filed within 14 days after the claimant receives notice of
the Commissioner’s favorable award on remand, consistent with Rule 54 (d)(2)(B) of the
Federal Rules of Civil Procedure and equitable tolling principles. See Sinkler v. Berryhill,
932 F.3d 83, 87-88 (2d Cir. 2019).
In Sinkler, the Second Circuit waded into the existing circuit split concerning
whether Rule 54 (d)(2)(B) or Rule 60 (b) determines the timeliness of § 406 (b) motions,
joining the Third, Fifth, and Eleventh Circuits in finding that Rule 54 applies. See id.; see
also Walker v. Astrue, 593 F.3d 274, 280 (3d Cir. 2010) (applying Rule 54); Pierce v.
Barnhart, 440 F.3d 657, 663 (5th Cir. 2006) (same); Burgen v. Comm’r of Soc. Sec., 545
F.3d 1273, 1277 (11th Cir. 2006) (same); but see McGraw v. Barnhart, 450 F.3d 493, 505
(10th Cir. 2006) (applying Rule 60 (b)).
Rule 54 (d)(2)(B)(i) provides that motions for attorney’s fees be filed no later than
14 days after the entry of judgment, unless a statute or a court order provides otherwise.
But as the Second Circuit noted, strict application of this timeframe is problematic in the
§ 406 (b) context because “the Commissioner typically does not calculate the amount of
past-due benefits until months after the district court remands, and § 406 (b) caps
attorney’s fees at 25% of the benefits award.” Sinkler, 932 F.3d at 87. Counsel is thus
faced with “a deadline that cannot be met.” Walker, 593 F.3d at 280. Joining the Third,
Fifth, and Eleventh Circuits, the Second Circuit resolved this practical problem by applying
the doctrine of equitable tolling to extend the time to file § 406 (b) motions until 14 days
after the claimant is notified of the Commissioner’s favorable award on remand, which the
Second Circuit found more harmonious with the federal rules of civil procedure than
applying Rule 60 (b). Sinkler, 932 F.3d at 88-89.
The Second Circuit addressed another practical problem: Sinkler’s lack of notice
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that the 14-day limitations period applies. Sinkler argued that her motion should be
considered timely filed under a reasonableness standard—whether the motion was filed
“within a reasonable time”—notwithstanding the rule application announced in Sinkler,
because that had been the practice of various district courts in the Second Circuit to-date.
See id. at 90-91. The court was unpersuaded. Even applying the reasonableness
standard that Sinkler invited it to do, the court found that Sinkler’s unexplained failure to
file her § 406 (b) motion for more than six months after receiving notice of the
Commissioner’s calculation of benefits on remand was not reasonable.
See id.
It
therefore found no prejudice stemming from Sinkler’s lack of notice that Rule 54 and
principles of equitable tolling govern the timeliness of § 406 (b) motions.
See id.
Consequently, it affirmed the district court’s judgment.
Here, Plaintiff was awarded $143,848 in past-due benefits by letter dated August
27, 2019 (post-Sinkler). (Notice of Award, Docket No. 23-5.) That notice also advised
that $35,962 was withheld for attorney’s fees. (Id.) On September 14, 2019, counsel
filed a § 406 (b) motion (amended on September 19, 2019) seeking $25,962.13 in fees,
consistent with the contingent-fee agreement that provides for attorney fees not to exceed
25% of any recovery. (Affirmation of Lewis L. Schwartz (“Schwartz Aff.”), Docket No. 232, & 1; Fee Agreement, Docket No. 23-3.) Adding three days for mailing, the § 406 (b)
motion is one day late under Sinkler, but within the 65-day time-frame set by Local Rule
5.5 (g)(1). Because counsel’s fee application is timely under the local rule and just one
day late under Sinkler, this Court deems it timely. 1
1 The Sinkler court did not consider the propriety of Local Rule 5.5 (g)(1) but questioned the continuing
3
Having thoroughly reviewed counsel=s fee request and supporting documentation,
this Court finds that the requested fee is reasonable based on counsel=s experience in
social security law, the character of the representation provided, and the favorable results
achieved. See Gisbrecht v. Barnhart, 535 U.S. 789, 808, 1122 S. Ct. 1817, 152 L. Ed.
2d 996 (2002). Moreover, there is no indication that this fee is a windfall. Id. Plaintiff=s
counsel=s $25,962.13 fee request is therefore granted under 42 U.S.C. ' 406 (b)(1)(A).
By stipulation approved and ordered on November 21, 2017, this Court previously
awarded Plaintiff=s counsel $5,500 in fees under the Equal Access to Justice Act
(AEAJA@), 28 U.S.C. ' 2412 (d). (Docket No. 19, 20.) According to Plaintiff’s counsel,
however, he received only $4,873.91 due to a tax garnishment. (Schwartz Aff., ¶ 18.)
Because the fee granted herein exceeds the EAJA fee, Plaintiff=s counsel must refund
the EAJA fee to Plaintiff and has agreed to do so. See Wells v. Bowen, 855 F.2d 37, 42
(2d Cir. 1988); Schwartz Aff., ¶ 18.
IT HEREBY IS ORDERED, that counsel=s Amended Motion for Attorney Fees in
the amount of $25,962.13 under 42 U.S.C. ' 406 (b)(1)(A) (Docket No. 23) is GRANTED.
need for such a rule in light of its decision. Sinkler, 932 F.3d at 89 n.6. Nonetheless, Local Rule 5.5 (g)(1)
remains in effect at this time.
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FURTHER, that counsel is directed to refund to Plaintiff the $4,873.91 EAJA award
within 14 days of the entry date of this Decision and Order.
SO ORDERED.
Dated: November 22, 2019
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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