Vessia v. Colvin

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x Adele J. Vessia MEMORANDUM AND ORDER Plaintiff, Case No. 2:16-cv-02865-FB -against-

Carolyn W. Colvin

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

Appearances: For the Plaintiff: For the Defendant: CHARLES E. BINDER MARY M. DICKMAN Law Offices of Charles E. Binder United States Attorney’s Office and Harry J. Binder 610 Federal Plaza 485 Madison Ave. Central Islip, NY 11722 Ste. 501 New York, NY 10022

BLOCK, Senior District Judge:

The Social Security Administration (“SSA”) awarded Plaintiff Adele Vessia (“Vessia”) $121,709.52 in past due benefits. Vessia’s counsel, Charles Binder (“Binder”), also obtained $4,387.72 in attorney’s fees under the Equal Access to Justice Act (“EAJA”). Pursuant to a fee agreement, Binder now seeks the full amount of attorney’s fees withheld by the SSA, totaling $30,427.38. See ECF No. 32, Ex. A. For the reasons below, Binder’s fee request is granted, but his share of the withheld funds is reduced to $17,985.00 for a de facto rate of $550 per hour.

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) (prescribing reasonableness review of contingency fee agreements). 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, Binder requests 25% of the total past-due benefits Vessia was awarded, and there is no allegation of fraud. Thus, the only remaining question is

whether a de facto hourly rate of $930.50 for 32.70 hours of work would constitute a “windfall” to Binder. It would. In Patruno v. Berryhill, this Court approved a $550 hourly fee for Binder’s services, and there is no reason why this rate is inadequate in this case. No. 16-CV-6236 (PKC) 2021 WL 1091900, at *1 (E.D.N.Y. March 22, 2021). Accordingly, Binder’s hourly rate is adjusted to $550

per hour for the 32.7 hours of work in this case, resulting in a total fee award of $17,985.00.

CONCLUSION Vessia’s motion is GRANTED IN PART. The Commissioner of the SSA is ORDERED to disburse $17,985 to Binder and the remainder to Vessia pursuant to

42 U.S.C. § 406(b). Upon receipt of these funds, Binder is DIRECTED to return the $4,387.72 awarded under the EAJA to Vessia.

SO ORDERED. _/S/ Frederic Block___________ FREDERIC BLOCK Senior United States District Judge

Brooklyn, New York September 16, 2021