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Barbour v. Colvin

United States District Court, E.D. New York

December 10, 2014

KEITH BARBOUR, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For the Plaintiff: Jeffrey D. Delott, Esq., Jericho, NY.

Vincent Lipari, Assistant United States Attorney, Loretta E. Lynch, United States Attorney, Eastern District of New York, Central Islip, NY.

ORDER

ARTHUR D. SPATT, United States District Judge.

By Memorandum of Decision and Order dated June 21, 2013, the Court remanded this case pursuant to 42 U.S.C. § 405(g) to the Administrative Law Judge to review his decision to deny Social Security Disability Benefits to the Plaintiff Keith Barbour (the " Plaintiff"). Barbour v. Astrue, 950 F.Supp.2d 480 (E.D.N.Y. 2013). Judgment based on this decision was entered on June 24, 2013.

On August 13, 2013, the Defendant Commissioner of Social Security (the " Defendant") approved the Plaintiff's application for Social Security Disability Benefits. The Plaintiff's past due benefits, including auxiliary benefits for his son, totaled $254, 696.

On August 26, 2013, the Plaintiff moved for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(A)(" EAJA").

On January 27, 2014, the Court granted the Plaintiff's motion for an EAJA award to the extent the Court awarded the Plaintiff attorneys' fees in the total amount of $8, 599.84 consisting of $7, 695.60 for 40 hours litigating the appeal and the main EAJA motion; $38.48 for the .2 hours reviewing the July 25, 2013 order; $38.48 for the .2 hours spent filing the EAJA motion; and $827.28 for 4.3 hours composing the reply brief. Further, the Court awarded the Plaintiff $641.53 in costs.

On October 27, 2014, the Plaintiff moved, pursuant to 42 U.S.C. § 406(b), for attorneys' fees in the amount of $26, 784 incurred in connection with work performed before this Court. The Plaintiff's counsel represents that he will turn over the EAJA fees to the Plaintiff in the event the Court approves his § 406(b) fee application. (Docket No. 41, at 3.)

" An award of attorneys' fees under section 406(b)(1) of the Act is proper where: 1) there is a judgment in favor of the claimant; 2) the fee is awarded as part of the Court's judgment; and 3) the reasonable fee does not exceed twenty-five percent of the total amount of past-due benefits awarded to the claimant." Slaughter v. Astrue, No. 10-CV-3428 (DLI), 2014 WL 3585513, at *2 (E.D.N.Y. July 21, 2014). Fees awarded under section 406(b)(1) are deducted from the claimant's past-due benefits, and it is the role of the district court to determine the reasonableness of the fee. 42 U.S.C. § 406(b)(1).

Where, as here, " there is a contingency fee agreement in a successful social security case, the district court's determination of a reasonable fee under § 406(b) must begin with the agreement, and the district court may reduce the amount called for by the contingency agreement only when it finds the amount to be unreasonable." Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990). Factors considered in determining whether a fee request is reasonable include: 1) " whether the retainer was the result of fraud or overreaching; " 2) " whether the attorney was ineffective or caused unnecessary delay; " 3) " whether the fee would result in a windfall to the attorney in relation to the services provided; " and 4) " the risk of loss the attorney assumed by taking the case." Kazanjian v. Astrue, No. 09 civ. 3678 (BMC), 2011 WL 2847439, at *1 (E.D.N.Y. July 15, 2011)(citing Wells, 907 F.2d at 372).

Here, the requested fee does not exceed the 25% statutory cap, and there is no indication of overreaching or fraud in the retainer agreement between counsel and the Plaintiff. Moreover, there is nothing to suggest that counsel was ineffective or caused delay. To the contrary, counsel's able representation resulted in the reversal of an adverse decision denying the Plaintiff's application and a subsequent award of disability benefits dating back to July 27, 2004. Finally, $26, 784 for 44.7 hours of work does not constitute a windfall when viewed against the favorable results obtained by counsel and the risk of loss associated with contingency fee agreements. Compare Slaughter, 2014 WL 3585513, at *3 (awarding $12, 000.00 for 19 hours of work); Warren v. Astrue, No. 06-cv-2933 (CBA), 2011 WL 5402493, at *2 (E.D.N.Y. Nov.7, 2011)(awarding $25, 000.00 for 38 hours of work); Blizzard v. Astrue, 496 F.Supp.2d 320, 321-25 (S.D.N.Y.2007)(awarding $26, 798.25 for 38 hours of work); Joslyn v. Barnhart, 389 F.Supp.2d 454, 457 (W.D.N.Y. 2005)(awarding $38, 116.50 for 42.75 hours of work).

For the foregoing reasons, the Plaintiff's motion pursuant to 42 U.S.C. § 406(b) for attorneys' fees in the amount of $26, 784 incurred in connection with work performed before this Court is granted. The Court directs counsel, upon receipt of the $26, 784 award made under § 406(b), to refund the $8, 599.84 award, made under the EAJA to the Plaintiff, as the lesser of the two fee awards. See Porter v. Comm'r of Soc. Sec., No. 8: 06-CV-1150 (GHL), 2009 WL 2045688, at *4 (N.D.N.Y. July 10, 2009)(" a double recovery, which is impermissible. Accordingly, the Court orders Counsel, upon receipt of the $9, 139.73 award made under § 406(b), to refund the $4, 758.00 award made under the EAJA to Plaintiff, as the lesser of the two fee awards.")(internal citations omitted). The case remains closed.

SO ORDERED.


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