The opinion of the court was delivered by: Sweet, District Judge.
Movant, Stanley F. Meltzer ("Meltzer") has moved pursuant to
42 U.S.C. § 406(b) for attorney's fees for representation of
plaintiff, Claire Mara ("Mara") against the Secretary of Health
and Human Services, Louis W. Sullivan (the "Secretary"). For the
reasons set forth below, movant is awarded an hourly fee of
$200.00 totalling $5,300 in fees due.
Mara prevailed in her action for disability benefits when this
court, on consent by the Secretary, remanded the case to the
Secretary for calculation of benefits, on April 21, 1989.
Subsequently, Mara filed a motion for attorney's fees pursuant to
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and
the court awarded fees and costs under EAJA in the amount of
$2,876.00 on September 29, 1989. At the same time, the court
denied Meltzer's request for fees pursuant to 42 U.S.C. § 406(b)
as premature because the amount of past due benefits and
the amount withheld for possible attorney's fees had not yet been
calculated by the Social Security Administration. Mara v.
Sullivan, 721 F. Supp. 520, 524 (S.D.N.Y. 1989). Meltzer has now
resubmitted his request for fees pursuant to 42 U.S.C. § 406(b)
and has asked the court to award him the maximum twenty-five
percent of past due benefits amounting to $6,183.25.
42 U.S.C. § 406(b) states that upon issuance of a favorable
judgment, a court may award a reasonable fee not to exceed
twenty-five percent of the past due benefits. 42 U.S.C. § 406(b).
As such, the statute is a parens patriae limit on the "attorney
client contractual relationship, which would otherwise be
determined by the marketplace for legal services." Wells v.
Bowen, 855 F.2d 37, 42 (2d Cir. 1988) (citation omitted).
Although the circuits differ in the approach to be adopted when
calculating a reasonable fee, see Cotter v. Bowen, 879 F.2d 359,
363 (1989), the Second Circuit has retained the "lodestar"
approach to determining fees under the Social Security Act. See
Wells, 855 F.2d at 43-46. Under this approach, a district court
is required to multiply the number of hours reasonably spent on
a case by a reasonable hourly rate. The resultant "lodestar" may
be enhanced to arrive at a "reasonable fee." Id. Moreover, when
calculating the fee, the court must articulate the weight
assigned to the risk of contingency. Id. at 45. The rate should
reflect "the prevailing rates in the district in which the court
sits." Polk v. New York State Dep't of Correctional Serv.,
722 F.2d 23, 25 (2d Cir. 1983).
Few reported cases discuss the calculation of attorney's fees
under § 406(b). Those in the Western District of New York have
reported of counsel who sought $90.00 and were awarded that or
similar amounts. See, e.g., McNeill v. Secretary, 713 F. Supp. 59
(W.D.N.Y. 1989) (court awarded $95.00 to expert counsel but had
misgivings about how to calculate rate); Pribek v. Secretary of
Health and Human Serv., 717 F. Supp. 73 (W.D.N.Y. 1989) (attorney
asked for and received $90.00 an hour).
Here, the Secretary suggests an hourly fee of $150.00 would be
appropriate and thus entitle Meltzer to $4,000.00. Meltzer has
requested a fee of $6,183.25, the full amount of benefits
withheld for possible payment of attorney's fees. Meltzer has
stated that he expended 26.5 hours and thus the requested fee
would compensate him at a rate of $233.33 per hour. The fee
agreement between Meltzer and Mara provides for this full
twenty-five percent figure. Although the Secretary notes that a
court should not treat the contingency percentage in the
attorney-client contract as presumptively reasonable, see Wells,
855 F.2d at 45, the Secretary's role in objecting to fee
petitions under 42 U.S.C. § 406(b) is limited to explaining what
would be the "appropriate fee" as measured by the standards the
agency would "apply for work before it." Id. at 47 (quoting Coup
v. Heckler, 834 F.2d 313, 325 (3d Cir. 1987)).
In Mara, 721 F. Supp. at 524, this court discussed at length
Meltzer's background and role in this case. In sum, he has
thirty-one years of experience and is a leader of the Social
Security Bar. His "extensive experience and expertise in the
field enabled him to accomplish much in a relatively short period
of time." Id. at 523. Practitioners in the private bar with such
experience can command routinely over $200.00 for fees.
In addition to counsel's expertise, we note the contingent
nature of the retainer, see Wells, 855 F.2d at 45 n. 1, the
client Mara's consent to the retainer, the positive result
achieved, the efficiency with which counsel handled the matter,
the obtaining of EAJA for Mara, the high cost of practicing law
in New York City — including taxes, rents, salaries — and the
comparable salaries of the private bar and conclude that Meltzer
is entitled to a $200.00 hourly rate. See also County of Suffolk
v. Long Island Lighting Co., 710 F. Supp. 1477, 1479-81 (E.D.N Y
1989) (considering similar factors). Section 406(b)'s twenty-five
percent limit is designed to protect the claimant from excessive
legal fees, but as the
Second Circuit noted, the provision was also enacted to
"encourage legal representation of Social Security claimants."
Pappas v. Bowen, 863 F.2d 227, 231 (2d Cir. 1988) (citations
Accordingly, Meltzer is awarded $5,300.00.
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