16-1866
Hill v. Berryhill

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PAR-
TY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 21st day of September, two thousand and seventeen.

Present:
                PETER W. HALL,
                CHRISTOPER F. DRONEY,
                          Circuit Judges,
                LAURA TAYLOR SWAIN,
                          District Judge.*


DEBORAH HILL,

                       Plaintiff-Appellant,

                v.                                                            16-1866


NANCY A. BERRYHILL, Acting Commissioner for So-
cial Security,†

                       Defendant-Appellee.




*Judge Laura Taylor Swain, of the United States District Court for the Southern District of New
York, sitting by designation.

†Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill is automatically substituted as the Acting
Commissioner for Social Security.
16-1866
Hill v. Berryhill

For Plaintiff-Appellant:    MAX D. LEIFER, Ira H. Zuckerman, New York, N.Y.

For Defendant-Appellee: CANDACE SCOTT APPLETON, Varuni Nelson, Arthur
                        Swerdloff, Assistant United States Attorneys, for Robert
                        L. Capers, United States Attorney for the Eastern District
                        of New York, Brooklyn, N.Y.


        Appeal from an order of the United States District Court for the Eastern Dis-

trict of New York (Block, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, AD-

JUDGED, AND DECREED that the order of the district court is AFFIRMED.

        Plaintiff-Appellant Deborah Hill appeals from a May 17, 2016, Order of the

district court, denying her motion for attorney’s fees under 42 U.S.C. § 406(b). We

assume the parties’ familiarity with the factual and procedural history of the case,

the district court’s rulings, as well as the arguments presented on appeal.

        “We review the district court’s [decision regarding] attorney’s fees for abuse of

discretion.” Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir. 2009) (citing Au-

to. Club of N.Y., Inc. v. Dykstra, 520 F.3d 210, 217 (2d Cir. 2008)). “Inasmuch as the

resolution of the district court’s [decision regarding] attorney’s fees implicates ques-

tions of law, our review is de novo.” Id. (citing Williams v. Beemiller, Inc., 527 F.3d

259, 264 (2d Cir. 2008)).

        Section 406(b) provides that an attorney who represents Social Security disa-

bility claimants in federal court may petition for attorney’s fees “[w]henever a court

renders a judgment favorable to a claimant . . . who was represented before the

court by an attorney.” 42 U.S.C. § 406(b)(1)(A). The statute authorizes the court to


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16-1866
Hill v. Berryhill

allow such a fee as part of the judgment, not exceeding 25 percent “of the total of

the past-due benefits to which the claimant is entitled by reason of such judgment.”

Id.

        Here, the district court did not render any judgment on Hill’s Social Security

claim. Instead, Hill voluntarily dismissed the case pursuant to Federal Rule of Civil

Procedure 41(a) and chose to seek relief available through the terms of a separate

settlement agreement, the Padro Settlement, resulting in the readjudication of her

claims at the administrative level. Although Hill ultimately achieved the relief she

sought, the voluntary dismissal entered by the district court neither established her

entitlement to past-due benefits nor created a fund from which a Section 406(b) fee

award could be allowed. Hill’s motion for attorney’s fees, therefore, was properly

denied by the district court.

        We have considered Hill’s remaining arguments and conclude that they are

without merit. The order of the district court denying Hill’s motion for attorney’s

fees is AFFIRMED.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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