Jackson v. O'Malley

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Bernice Jackson,
Plaintiff 6:23-cv-00806 (MJK)
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant.
George C. Piemonte, Esq., Attorney for Plaintiff
Fergus Kaiser, Esq., Special Assistant United States Attorney for
Defendant
DECISION AND ORDER
Jackson moves the Court1 for an award of attorney’s fees pursuant
to 42 U.S.C. § 406(b)(1). (Dkt. 32). The Commissioner filed a response.
(Dkt. 33). By supplemental affirmation dated December 10, 2025,
Jackson’s counsel attests that Jackson has been notified of the fee
motion in accordance with section (F)(2) of G.O. 18. (Dkt. 35). The
motion seeks an award of $32,065.75, less the $6,115.56 previously paid
1 The parties consented to the jurisdiction of the Magistrate Judge. (G.O. 18 and
Dkt. 5).
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to Jackson’s attorney under the Equal Access to Justice Act (“EAJA”),
for a net total of $25,950.19.
The motion is granted in part and denied in part. The Court
awards the sum of $32,065.75 as reasonable attorney’s fees but denies
the request to “net” the previously paid EAJA fee. Counsel is directed to
remit to Jackson the EAJA fee previously received.
I. DISCUSSION
Jackson entered into a contingency fee agreement with Martin
Jones & Piemonte, Attorneys at Law on April 5, 2023 pursuant to which
Jackson agreed to pay in attorneys’ fee no more than 25% of all back
benefits paid to her arising from the firm’s work in court. (Dkt. 32-3).
The fee contract acknowledges the attorney’s obligation to account for
the EAJA fee and provides that the EAJA fee will be netted from the
total award.
Attorney Piemonte attests that a total of 24.59 hours of attorney
services were devoted to Jackson’s case in this Court. The services
provided included evaluation the case for appeal to the District Court;
assessing the need to develop the medical record; advising Jackson
regarding an appeal to the District Court; drafting the Complaint;
researching and drafting a brief in the District Court; reviewing the
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Government’s motion to remand; reviewing the final order and
judgment and preparing an application for EAJA fees. (Dkt. 32-1, at 4).
A supplemental administrative record was filed on January 31,
2024. (Dkt. 24). Jackson’s brief was filed on March 18, 2024. (Dkt. 25).
A stipulation to remand (Dkt. 27) was approved by this Court on April
23, 2024 and judgment was entered in Jackson’s favor (Dkts. 28, 29). A
stipulation pursuant to the EAJA was filed on July 2, 2024 and
approved by the Court on July 3, 2024 (Dkts. 30, 31). On remand, the
Commissioner found Jackson disabled and she received a Notice of
Award dated October 25, 2025, indicating $128,263 as the total amount
of past-due benefits being awarded, and the withholding of $32,065.75
for attorney’s fees. (Dkt. 32-2, Exhibit A to motion for fees).
The Court must determine whether the attorney’s fees award
requested is reasonable. See Gisbrecht v. Barnhart, 535 U.S. 789, 798
n.6 (2002). To make this finding, the court considers the factors set
forth in Fields v. Kijakazi, 24 F.4th 845,853-56 (2d Cir. 2022). Here,
there is no evidence that there was fraud or overreaching in the making
of the contingency fee contract, and the contingency fee of 25% is
compliant with 42 U.S.C. §406(b)(1)(A). The fully favorable outcome
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achieved by the law firm speaks for itself. As the record shows, the firm
was not responsible for any undue delay in the prosecution of the appeal
as established by the timeline described above. Attorney Piemonte has
thirty years of experience in representing Social Security disability
claimants and holds a professional certification in the subject matter,
along with holding various bar and other association leadership
positions focused on Social Security and disability related law. Since
1995, Social Security law related matters represents 90% of Attorney
Piemonte’s practice. (Dkt. 32-6). Mr. Piemonte’s colleague, Ellen Moyle,
attests to approximately 12 years of experience focused on Social
Security disability matters. (Dkt. 32-7).
The hours spent in representing Jackson reflect the efficiency that
such a focused subject matter practice can bring to handling these types
of cases. There is no evidence that Jackson is unsatisfied with the
efforts of the law firm. The nature of these cases makes a favorable
result uncertain, yet the effort to achieve the result is a constant.
The Court also finds that the fee award does not constitute a
windfall as the effective hourly rate of $1,055 (25,950/24.59) is
reasonable given Attorney Piemonte and Moyle’s experience, and the
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risk associated with contingency fee practice (and the desirability of
having attorneys willing to handle these cases on a contingency fee
basis). See Franklin P. v. Comm’r of Soc. Sec., 6:21-CV-162, 2022 WL
3371148 (N.D.N.Y. Aug. 16, 2022) (Hurd, J.) ($1,025.94 de facto hourly
rate); see also Eric K. v. Berryhill, No. 5:15-cv-00845 (BKS), 2019 WL
1025791, *3 (N.D.N.Y. Mar. 4, 2019) (Sannes, J.) ($1,500 de facto hourly
rate); Kazanjian v. Astrue, No. 09-CV-3678 (BMC), 2011 WL 2847439,
*2 (E.D.N.Y. July 15, 2011) ($2,100 de facto hourly rate).
Finally, the Court denies the request for netting the EAJA fee
from the final fee award, consistent with Gisbrecht, where the Supreme
Court noted that Congress recognized that “[f]ee awards may be made
under both [EAJA and 406(b)], but the claimant’s attorney must ‘refund
to the claimant the amount of the smaller fee.” 535 U.S. at 796; see also
Duane P. v. Bisignano, 2025 WL 1707224 (S.D.N.Y. 2025)(“netting” is
disfavored, noting that an award under 406(b) is paid by the plaintiff
and fees paid under EAJA are paid by the government); Flynn v. Saul,
2023 WL 2815120 (S.D.N.Y. 2023); Johnson v. Kijakazi, No. 20-CV-
2630, *6, 2022 WL 17718336, at *6 (S.D.N.Y. Dec. 15, 2022) (noting that
netting “ignores the express statutory directive that, ‘where the
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claimant’s attorney receives fees for the same work under both [§
406(b)] and [EAJA], the claimant’s attorney refunds to the claimant the
amount of the smaller fee.’”) (quoting Pub. L. No. 99-80, § 3, 99 Stat.
186).
For the reasons set forth above, Jackson’s motion is granted to the
extent that her attorney, Martin, Jones & Piemonte, is awarded fees
under 42 U.S.C. § 406(b)(1) in the amount of $32,065.75, to be paid out
of Jackson’s past due benefits, from the monies retained by the
Commissioner for that purpose. Martin, Jones & Piemonte is directed,
upon receipt of the §406(b) award, to refund Jackson the EAJA fees
previously awarded, in the amount of $6,115.56.
WHEREFORE, it is hereby
ORDERED, that Martin Jones & Piemonte’s motion is granted
and the firm is awarded attorney’s fees in the amount of $32,065.75,
and it is further
ORDERED, that Martin Jones & Piemonte shall refund to
Jackson any fees previously received under the EAJA, to wit, $6,115.56.
Dated: December 15, 2025.
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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