Giacoio v. Commissioner of Social Security

Background

Kim A. Giacoio sued for judicial review of the Commissioner of Social Security’s decision terminating her Social Security benefits and requiring repayment of benefits she had already received. Attorney Louis R. Burko represented Giacoio under a contingency-fee agreement allowing counsel to receive up to 25% of any past-due benefits awarded.

On August 4, 2021, the parties agreed to send the case back to the Commissioner for further proceedings. Burko then received $6,800 in attorney’s fees under the Equal Access to Justice Act, a statute that permits fee awards against the United States when the government’s litigation position was not substantially justified. After the further administrative proceedings, the Social Security Administration reinstated Giacoio’s benefits and calculated past-due benefits. It withheld 25% of those benefits, or $58,859.78, for a possible attorney-fee award under Section 206(b) of the Social Security Act.

Burko sought the full $58,859.78 under Section 206(b). His firm reported 33 hours of work, resulting in a de facto hourly rate of $1,783.62. The Commissioner deferred to the court on whether the request was timely and reasonable.

Timeliness

A Section 206(b) fee motion generally must be filed within 14 days after entry of judgment. The opinion explains that there is uncertainty about whether that period begins when the claimant or the claimant’s attorney receives the Social Security Administration’s notice showing the benefits calculation. Courts may extend the filing period when circumstances justify doing so.

The Social Security Administration mailed its notice on December 20, 2022. Burko stated that his office did not receive it until January 5, 2023, and he filed the fee motion on January 10, 2023. The court concluded that the motion was timely if the period began when Burko received the notice. Even if Giacoio received the notice earlier and the motion was technically late, the court found that a short extension was justified and accepted the motion as timely.

Reasonableness of the Fee

Section 206(b) permits a court to authorize reasonable fees of up to 25% of past-due benefits. The court must ensure that the fee stays within that cap, that the fee agreement was not the product of fraud or overreaching, and that the award does not give the attorney an improper windfall. In assessing a possible windfall, the court considers factors including the attorney’s ability and efficiency, the professional relationship with the claimant, the claimant’s satisfaction, and the uncertainty and effort involved in obtaining benefits.

The court found the requested fee reasonable. It did not exceed 25% of the benefits awarded, and the record showed no fraud or overreaching. Although the resulting hourly rate was very high, the court found it within the range generally approved in similar Social Security matters. The court also found that 33 hours was a reasonable and efficient amount of time, that Burko achieved the favorable result of having Giacoio’s benefits reinstated, and that obtaining benefits had been uncertain when he agreed to represent her.

Disposition

The court granted the motion and authorized attorney’s fees of $58,859.78 under Section 206(b). After receiving that payment, Burko must refund Giacoio the attorney’s fees previously received under the Equal Access to Justice Act. The Clerk was directed to terminate the motion at ECF No. 37.