Opinion
2:16-cv-02865-FB
09-16-2021
Adele J. Vessia Plaintiff, v. Carolyn W. Colvin Defendant.
For the Plaintiff: CHARLES E. BINDER Law Offices of Charles E. Binder and Harry J. Binder For the Defendant: MARY M. DICKMAN United States Attorney's Office
For the Plaintiff:
CHARLES E. BINDER
Law Offices of Charles E. Binder and Harry J. Binder
For the Defendant:
MARY M. DICKMAN
United States Attorney's Office
MEMORANDUM AND ORDER
FREDERIC BLOCK, SENIOR UNITED STATES 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.