Rivera v. Commissioner of Social Security

Background

Arlene Matilde Rivera’s counsel, Daniel Berger, requested $17,075 in attorney’s fees under 42 U.S.C. § 406(b). The request represented 25 percent of Rivera’s retroactive Social Security benefits. Counsel acknowledged that, upon receiving the § 406(b) award, he had to remit a previously awarded $7,000 Equal Access to Justice Act fee directly to Rivera.

The requested amount corresponded to a de facto hourly rate of $457.77, based on 37.30 hours of work in the district court. The Commissioner did not object to the amount’s reasonableness but argued that the fee petition appeared untimely.

Timeliness dispute

The Commissioner relied on a September 30, 2020 Social Security Administration notice of award that advised Rivera of her benefits and stated that $17,075 in past-due benefits was being withheld for a possible fee petition. The Commissioner stated that the notice was also sent to counsel, but supplied no documentation or affidavit establishing that it had been mailed to counsel.

Counsel argued that the petition was timely because his office received a February 9, 2021 notice concerning the withheld benefits and filed the motion on February 18, 2021. Counsel stated that he first received a copy of the September 30 notice when it was attached to the Commissioner’s response.

The court discussed the Second Circuit’s decision in Sinkler v. Commissioner of Social Security, which applies the 14-day filing period in Federal Rule of Civil Procedure 54(d)(2)(B) to § 406(b) fee petitions but allows district courts to enlarge that period when circumstances warrant. The court incorporated its analysis from a prior related proceeding and expressly declined to decide whether the filing period begins when the claimant or counsel receives the notice. It concluded that the application was timely if counsel’s receipt controlled and that equitable tolling should apply if the claimant’s receipt controlled.

Merits of the fee request

The court evaluated the reasonableness of the requested fee. It noted that the contingency agreement used a 25-percent rate, that there was no evidence of fraud or overreaching by counsel, and that the $457.77 hourly rate was within rates approved in the district and did not constitute a windfall. The Commissioner did not otherwise challenge the requested fee.

Ruling

The court granted Rivera’s motion and awarded counsel $17,075, representing 25 percent of Rivera’s retroactive benefits. Counsel was directed, upon receiving that sum, to remit the previously awarded $7,000 Equal Access to Justice Act fee directly to Rivera. The Clerk was directed to close Docket No. 23 and mark it as “granted.”