Davis v. Berryhill

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x Thomas P. Davis MEMORANDUM AND ORDER Plaintiff, Case No. 1:17-cv-4883-FB -against-

Nancy A. Berryhill

Defendant. ------------------------------------------------x

Appearances: For the Plaintiff: For the Defendant: CHRISTOPHER J. BOWES MARK J. LESKO Center for Disability Advocacy By Matthew Silverman Rights United States Attorney’s Office 100 Lafayette St. 271 Cadman Plaza East Ste. 304 7th Floor New York, NY 10013 Brooklyn, NY 11201

BLOCK, Senior District Judge:

Plaintiff Thomas P. Davis obtained $140,055.00 in past-due benefits after the Court vacated the Social Security Administration’s (“SSA’s”) denial of his disability benefits claim. Pending is Attorney Christopher Bowes’s (“Bowes’s”) motion for approval of a contingency fee agreement (“the Agreement”), which provides that 25% of the plaintiff’s past due benefits award will be paid to counsel. See ECF No. 29 at 12. The Court notes that the SSA has withheld $34,530.00 of the plaintiff’s past due benefits to cover a possible fee award, and Bowes has already been awarded $7,000.00 under the Equal Access to Justice Act (“EAJA”).

See ECF No. 27; ECF No. 29 at 21. Title 42, United States Code, Section 406(b) entitles prevailing plaintiffs in

Social Security actions to “reasonable [attorney’s] fee[s] [that are] not in excess of 25 percent of the total past-due benefits to which the plaintiff is entitled.” The Supreme Court has held that 42 U.S.C. § 406(b)’s “reasonable fee” provision does not prohibit the use of contingency fee agreements, so long as they do not provide

for a fee “in excess of 25 percent of the total past due benefits” and are “reasonable.” See Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002). Courts in the Second Circuit weigh three factors when assessing the reasonableness of a fee

agreement: (1) whether the proposed fee is below the 25% statutory maximum; (2) whether the contingency fee agreement is the product of fraud or attorney overreach; and (3) whether the requested amount is so large as to be a windfall to the attorney. Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).

Here, Bowes requests a fee of $34,530.00, which is less than 25% of the total benefits award, and there is no evidence that fraud induced the plaintiff to

enter into the Agreement. Thus, the only question is whether an award of $34,530.00 for 37.4 hours of work (or $923.26/hour) would constitute a windfall. It would. Recent caselaw suggests that Bowes commands a fee of $700 per hour, and there is no reason why that sum is inadequate in this case. See Savage v. Comm’r of Soc. Sec. Admin., No. 15-CV-5774, 2020 WL 3503218, at *2 (E.D.N.Y. Jun. 29.

2020) (holding that $700 hourly fee is “above market rate and comparable to other awards that [Bowes] has received”) (quoting Almodovar v. Saul, No.16-CV-7419, 2019 WL 7602176, at *3 (S.D.N.Y. Oct. 4, 2019), adopted by 2019 WL 6207784

(S.D.N.Y. Nov. 21, 2019)). Bowes’s fee is reduced to $26,180.00. Moreover, the Court cannot deduct the $7,000.00 EAJA award from its final award, since the statute requires that “the claimant’s attorney. . .refund to the

claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 789. Accordingly, Bowes shall be required to refund the $7000 he received under the EAJA.

CONCLUSION The plaintiff’s motion for attorney’s fees is GRANTED IN PART. The Commissioner of the SSA is ORDERED to disburse $26,180.00 to Bowes and the remainder to the plaintiff. Upon receipt of these funds, Bowes is DIRECTED to refund the $7000.00 awarded under the EAJA to the plaintiff.

SO ORDERED.

_/S/ Frederic Block__________ FREDERIC BLOCK Senior United States District Judge

Brooklyn, New York April 15, 2021