DiDomizio v. Berryhill
Filing
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DECISION AND ORDER IT HEREBY IS ORDERED, that counsel's Motion for Attorney Fees in the amount of $9,148 under 42 U.S.C. § 406 (b)(1)(A) (Docket No. 22) is GRANTED.FURTHER, that Plaintiff's counsel is directed to refund to Plaintiff the $4,769 EAJA award within 14 days after receiving his § 406 (b) award. SO ORDERED.Issued by William M. Skretny, United States District Judge on 3/31/2020. (JCM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSEPH CASPER DiDOMIZIO,
Plaintiff,
v.
DECISION AND ORDER
17-CV-589S
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Plaintiff Joseph Casper DiDomizio is a prevailing party in this social security
benefits action.
Presently before this Court is Plaintiff=s counsel=s timely Motion for
Attorney Fees under 42 U.S.C. ' 406 (b)(1)(A). 1 (Docket No. 22.) Defendant does not
oppose the motion. (Docket No. 24.)
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.
1 The United States Court of Appeals for the Second Circuit 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, 86 (2d Cir. 2019). Plaintiff received his notice of
favorable award on February 15, 2020, making Plaintiff’s counsel’s February 19, 2020 motion timely.
Plaintiff was awarded $36,592 in past-due benefits by letter dated February 15,
2020. (Affirmation of Lewis L. Schwartz, Docket No. 22-1, & 12; Docket No. 22-4.)
Plaintiff’s counsel seeks $9,148 in attorney’s fees, consistent with the contingent-fee
agreement that provides for attorney fees not to exceed 25% of any recovery. (Docket
No. 22-2.)
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 $9,148 fee request is therefore granted under 42 U.S.C. § 406 (b)(1)(A).
By stipulation approved and ordered on July 30, 2018, this Court previously
awarded Plaintiff’s counsel $4,769 in fees under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412 (d). (Docket Nos. 20, 21.) Because the fee granted herein exceeds
the EAJA fee, Plaintiff’s counsel must refund the EAJA fee to Plaintiff. See Wells v.
Bowen, 855 F.2d 37, 42 (2d Cir. 1988).
IT HEREBY IS ORDERED, that counsel=s Motion for Attorney Fees in the amount
of $9,148 under 42 U.S.C. ' 406 (b)(1)(A) (Docket No. 22) is GRANTED.
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FURTHER, that Plaintiff’s counsel is directed to refund to Plaintiff the $4,769 EAJA
award within 14 days after receiving his § 406 (b) award.
SO ORDERED.
Dated: March 31, 2020
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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