United States District Court, E.D. New York
L. IRIZARRY, Chief United States District Judge
James Bowes (“Mr. Bowes”), counsel to plaintiff
James Besignano (“Plaintiff”) in this action,
moves pursuant to 42 U.S.C. § 406(b) for an award of
attorney's fees in the amount of $35, 267.50. (See
generally Pl.'s Mem. in Supp. of § 406(b) Mot.
(“Mem.”), Dkt. Entry No. 30.) The Commissioner of
Social Security (“Commissioner”) does not oppose
the motion. (See Dkt. Entry No. 31.) For the reasons
set forth below, counsel is awarded $35, 267.50 in
attorney's fees, and is directed to refund Plaintiff $7,
600.00 the amount previously received under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412.
to a retainer agreement dated November 26, 2012, Plaintiff
retained counsel to represent him in his pursuit of Social
Security Disability (“SSD”) benefits under the
Social Security Act (the “Act”). (See
Declaration of Christopher James Bowes, dated June 27, 2016
(“Bowes Decl.”), Ex. A, Dkt. Entry No. 32.) On
December 13, 2012, with the assistance of counsel, Plaintiff
filed an appeal to challenge the final decision of the
Commissioner, which affirmed an April 28, 2011, decision of
the Administrative Law Judge (“ALJ”).
(See Compl. ¶¶ 10-11, Dkt. Entry No. 1.)
The ALJ found that Plaintiff was not disabled because he
retained the capacity to perform sedentary work.
(Id. ¶ 10.) On August 14, 2014, the Court
issued an opinion and order reversing the Commissioner's
decision in part and remanding the matter to the Commissioner
for further administrative proceedings. (See Dkt.
Entry No. 23.) By written stipulation approved and “So
Ordered” by the Court on November 12, 2014, the parties
agreed to an award of $7, 600.00 in attorney's fees under
the EAJA. (See Dkt. Entry No. 27.)
proceedings resumed before a different ALJ in 2015, and the
ALJ found Plaintiff disabled and entitled to SSD benefits.
(Bowes Decl. ¶¶ 12-13.) On September 30, 2015,
Plaintiff was advised that the Commissioner had withheld $35,
267.50, or 25% of the past-due benefits payable to Plaintiff
for potential attorney's fees. (Id.) Counsel now
moves this Court to authorize attorney's fees in the
amount of $35, 267.50, representing the withheld funds
(before applying the setoff for EAJA fees previously
42 U.S.C. § 406(b) of the Act (“§
406(b)”), a district court may award an attorney who
successfully represents a claimant a “reasonable fee .
. . not in excess of 25 percent of the total of the past-due
benefits to which the claimant is entitled.” 42 U.S.C.
§ 406(b)(1)(A). Where, as here, there is a contingency
fee arrangement in place, “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 unreasonable.” Wells v.
Sullivan, 907 F.2d 367, 371 (2d Cir. 1990). Factors a
courts should consider in determining whether a fee is
unreasonable 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, 2011 WL 2847439, at *1 (E.D.N.Y. July 15, 2011)
(citing Wells, 907 F.2d at 372).
the fee agreement itself is a straightforward two-page
document that was executed prior to filing Plaintiff's
appeal. The fee agreement provides that, “the
contingency fee paid to this firm shall be 25% of all
retroactive or past due social security disability benefits
awarded to [Plaintiff.]” (Bowes Decl., Ex. A.) On its
face, the agreement is reasonable, as the 25% fee it provides
for is a standard contingency fee in Social Security cases.
See Gisbrecht v. Barnhart, 535 U.S. 789, 803 (2002)
(“Characteristically . . . attorneys and clients enter
into contingent-fee arrangements specifying that the fee will
be 25 percent of any past-due benefits . . .”)
(internal quotation marks and citation omitted).
Additionally, there is no indication in the record or
allegations that the agreement is the product of fraud or
overreaching or that Plaintiff's counsel caused a delay
that inflated the requested fees. Therefore, the Court finds
that the agreement is reasonable and should be enforced
unless it results in a windfall to counsel.
requested fee award does not constitute a windfall to
Plaintiff's counsel. Mr. Bowes seeks an award of
attorney's fees in the amount of $35, 267.50 for 43.5
hours of work on behalf of Plaintiff before this Court.
(Bowes Decl. ¶ 22.) This is equivalent to an hourly rate
of $810.74. (Id.) Although this amount appears
considerable relative to the hours worked, it falls within
the range of awards found both “reasonable” and
as not constituting a windfall under § 406(b) by other
courts in this circuit. See Kazanjian, 2011 WL
2847439, at *2 (approving award equivalent to hourly fee of
$2, 100.00); Diz v. Astrue, 2010 WL 322028, at *2
(E.D.N.Y. Jan. 26, 2010) (granting award of 25% past-due
benefits in an amount equivalent to $825.00 hourly rate for
17.4 hours worked); Joslyn v. Barnhart, 389
F.Supp.2d 455-57 (W.D.N.Y. 2005) (awarding as reasonable
attorney's fees 25% past-due benefits equivalent to
$891.61 hourly rate). The award does not constitute a
windfall when viewed against the positive result obtained by
counsel, and the risk of loss Mr. Bowes assumed in taking
Plaintiff's case on a contingency basis. Accordingly,
counsel's unopposed motion for $35, 267.50 in
attorney's fees is granted.
although fees are permitted under both the EAJA and §
406(b), “the claimant's attorney must refund to the
claimant the amount of the smaller fee.”
Gisbrecht, 535 U.S. at 796 (internal citation and
quotation marks omitted). Here, Plaintiff's counsel
recovered $7, 600.00 in attorney's fees under the EAJA
and must return that amount to Plaintiff from the payment
awarded under § 406(b).
foregoing reasons, Plaintiff's counsel's unopposed
motion is granted, and attorney's fees are awarded in the
amount of $35, 267.50 pursuant to 42 U.S.C. § 406(b).
counsel is directed to remit to Plaintiff the $7, 600.00
previously awarded ...