Alvarez v. Berryhill

Filing 28

ORDER granting 24 the plaintiff's motion for attorney fees. Signed by Hon. Lawrence J. Vilardo on 11/4/2020.(MLA)

Case 1:17-cv-00140-LJV Document 28 Filed 11/04/20 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RAFAEL A. ALVAREZ ROSARIO,

Plaintiff,
v.

1:17-CV-00140-LJV

DECISION & ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________

The plaintiff, Rafael Alvarez Rosario, is a prevailing party in this social security
benefits action. His counsel, Lewis Schwartz, has moved for attorney’s fees under
42 U.S.C. § 406(b)(1)(A). Docket Item 24. The defendant does not oppose the motion
but defers to the Court to determine whether the motion is timely. Docket Item 26 at 3.
I.

TIMELINESS
On August 2, 2019, the Second Circuit held that Section 406(b)(1)(A) motions

must be filed within 14 days of the claimant receiving notice of award. Sinkler v.
Berryhill, 932 F.3d 83, 87-88 (2d Cir. 2019). Notwithstanding this deadline, the Second
Circuit made it clear that “district courts are empowered to enlarge that filing period
where circumstances warrant.” See id. at 89.
The Social Security Administration (“SSA”) issued Alvarez Rosario a notice of
award on August 5, 2020. Docket Item 26 at 2. On September 22, 2020, the SSA sent
Schwartz a letter informing him that it withheld 25% of Alvarez Rosario’s past-due
benefits, $19,822.25, to pay possible attorney fees. Docket Item 24-4. On September
25, 2020, Schwartz faxed a letter to the SSA requesting a copy of the August 5 notice of

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award. Docket Item 27-1 at 1. The following day, on September 26, 2020, Schwartz
filed this motion. Docket Item 24. And on September 29, 2020, Schwartz received a
copy of the August 5 notice of award. Docket Item 27 at 1.
There is no dispute that this motion was filed more than 14 days after Schwartz’s
client received the notice of award. But there also is no dispute that the motion was
filed within 14 days of when Schwartz alleges he received the notice. Indeed, Schwartz
filed this motion four days after he was alerted to the award, Docket Item 24, three days
before he actually received a copy of the notice, Docket Item 27.
Although the motion for attorney’s fees is untimely under Sinkler, this Court will
excuse the delay. Upon learning of the award, Schwartz acted diligently in filing this
motion: within three days, he requested the notice of award from the SSA, Docket Item
27 at 1, and within four, he filed this motion, id. at 1.
II.

REASONABLENESS
Section 406(b)(1)(A) provides:
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.
Alvarez Rosario was awarded $79,289 in past-due benefits. Docket Item 24-1 at

3. Schwartz seeks $19,822.25 in fees, which is 25% of the past-due benefits and is

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consistent with the contingent-fee agreement that provides for attorney’s fees in the
amount of 25% of any recovery. Docket Item 24-1 at 2-3.
Having 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 (2002). Moreover, there is no
indication that this fee is a windfall.1 Id. The $19,822.25 fee request is therefore
granted under 42 U.S.C. § 406(b)(1)(A).
By stipulation approved and ordered on June 13, 2019, this Court previously
awarded Alvarez Rosario’s counsel $5,662 in fees under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). Docket Items 22, 23. Because the fees granted
above exceed the EAJA fees, Alvarez Rosario’s counsel must refund the EAJA fees to
him. See Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988).

1

While the fee here constitutes an hourly rate of $665.18—high by Western New
York standards—the precedent cited in counsel’s fee application and the incentive
necessary for counsel to take contingency-fee cases weigh in favor of approving the fee
here. See Gisbrecht, 535 U.S. at 808 (noting that “a record of the hours spent
representing the claimant” can be used by the court “as an aid to [its] assessment of the
reasonableness of the fee yielded by the fee agreement”).
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ORDER
In light of the above,
IT IS HEREBY ORDERED that the plaintiff’s motion for attorney’s fees under
42 U.S.C. § 406(b)(1)(A) in the amount of $19,822.25, Docket Item 24, is GRANTED;
and it is further
ORDERED that Alvarez Rosario’s counsel shall refund the $5,662 in EAJA fees
to Alvarez Rosario within 14 days of the entry date of this decision and order.

SO ORDERED.
Dated:

November 4, 2020
Buffalo, New York

LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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