Danner v. Berryhill

Filing 27

ORDER granting the plaintiff's motion for attorney's fees under 42 U.S.C. § 406(b)(1)(A) in the amount of $5,300, Docket Item 23 . The plaintiff's counsel shall refund the $1,000.03 in EAJA fees to the plaintiff within 14 days. Signed by Hon. Lawrence J. Vilardo on 4/26/2021. (MLA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
NATHAN D.,1
Plaintiff,
v.

17-CV-738-LJV
DECISION & ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________
The plaintiff, Nathan D., is a prevailing party in this social security benefits action.
His counsel has moved for attorney’s fees under 42 U.S.C. § 406(b)(1)(A). Docket
Item 23. The defendant does not oppose the motion. Docket Item 26.
Section 406(b)(1)(A) provides:
Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, the court
may determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the past-due
benefits to which the claimant is entitled by reason of such judgment, and
the Commissioner of Social Security may, notwithstanding the provisions of
section 405(i) of this title, but subject to subsection (d) of this section, certify
the amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits. In case of any such
judgment, no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
Nathan was awarded $163,428.52 in past-due benefits. Docket Item 23-3;
Docket Item 23-1 at 2. His counsel seeks $5,300 in fees, which is far less than 25% of

1

To protect the privacy interests of social security litigants while maintaining
public access to judicial records, this Court will identify any non-government party in
cases filed under 42 U.S.C. § 405(g) only by first name and last initial. Standing Order,
Identification of Non-government Parties in Social Security Opinions (W.D.N.Y. Nov. 18,
2020).

the past-due benefits that the contingent-fee agreement provided for. See Docket
Item 23-5.
Having reviewed counsel’s fee request and supporting documentation, this Court
finds that the requested fee is reasonable based on counsel’s experience in social
security law, the character of the representation provided, and the favorable results
achieved. See Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). Moreover, there is no
indication that this fee is a windfall.2 Id. The $5,300 fee request therefore is granted
under 42 U.S.C. § 406(b)(1)(A).
By stipulation approved and ordered on June 20, 2018, this Court previously
awarded Nathan’s counsel $1,000.03 in fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). Docket Items 21, 22. Because the fees granted above
exceed the EAJA fees, Nathan’s counsel must refund the EAJA fees to him. See Wells
v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988).

2

While the fee here constitutes an hourly rate of $1,000—high by Western New
York standards—the precedent cited in counsel’s fee application and the incentive
necessary for counsel to take contingency-fee cases weigh in favor of approving the fee
here. See Gisbrecht, 535 U.S. at 808 (noting that “a record of the hours spent
representing the claimant” can be used by the court “as an aid to [its] assessment of the
reasonableness of the fee yielded by the fee agreement”).
2

ORDER
In light of the above,
IT IS HEREBY ORDERED that the plaintiff’s motion for attorney’s fees under
42 U.S.C. § 406(b)(1)(A) in the amount of $5,300, Docket Item 23, is GRANTED; and it
is further
ORDERED that Nathan’s counsel shall refund the $1,000.03 in EAJA fees to
Nathan within 14 days of the entry date of this decision and order.

SO ORDERED.
Dated:

April 26, 2021
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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