Opinion
Case No. 1:18-cv-6082-FB
03-22-2021
Cataldo Patruno Plaintiff, v. Nancy A. Berryhill Defendant.
Appearances: For the Plaintiff: CHARLES E. BINDER Law Offices of Charles E. Binder and Harry J. Binder 485 Madison Ave. Ste. 501 New York, NY 10022 For the Defendant: PETER W. JEWETT United States Attorney's Office 271 Cadman Plaza East 7th Floor Brooklyn, NY 11201
MEMORANDUM AND ORDER Appearances:
For the Plaintiff:
CHARLES E. BINDER
Law Offices of Charles E. Binder
and Harry J. Binder
485 Madison Ave.
Ste. 501
New York, NY 10022 For the Defendant:
PETER W. JEWETT
United States Attorney's Office
271 Cadman Plaza East
7th Floor
Brooklyn, NY 11201 BLOCK, Senior District Judge :
The Social Security Administration ("SSA") awarded Plaintiff Cataldo Patruno $111,107.00 in past due benefits but withheld $27,812.90 to pay a possible fee award. Patruno also obtained $4742.82 under the Equal Access to Justice Act ("EAJA"), but the parties stipulated that the EAJA award would be paid to Binder. Pursuant to a fee agreement, Binder now seeks the full amount withheld by the SSA. See ECF No. 17, Ex. 3. For the reasons below, Binder's fee request is granted, but his share of the withheld funds is reduced to $12,595.00 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 Patruno was awarded, and there is no allegation of fraud. Thus, the only remaining question is whether a de facto hourly rate of $1214.54 for 22.90 hours of work would constitute a "windfall" to Binder. It would. In Sweda v. Berryhill, Judge Chen of the Eastern District of New York approved a $500 for Binder's services. No. 16- CV-6236 (PKC) 2019 WL 2289221, at *3 (E.D.N.Y. May 28, 2019). However, because the Sweda case is two years old, and Binder has achieved respectable results for his client, the Court will raise the fee to $550 per hour, resulting in a net award of $12,595.00.
CONCLUSION
Patruno's motion is GRANTED IN PART. The Commissioner of the SSA is DIRECTED to disburse $12,595.00 to Binder pursuant to 42 U.S.C. § 406(b). If Binder has not already received the EAJA award, the Commissioner shall also disburse the amount of that award ($4742.82) to Binder. The remainder shall be disbursed to Patruno.
Upon receipt of these funds, Binder shall return all monies awarded under the EAJA to Patruno.
SO ORDERED.
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
March 22, 2021