Vogt v. Commissioner of Social Security
Filing
22
DECISION & ORDER granting the plaintiff's motion for attorney's fees under 42 U.S.C. § 406(b)(1)(A) in the amount of $15,051.75, Docket Item 20 ; Vogt's counsel shall refund the $6,224.29 in EAJA fees to Vogt within 14 days of the entry date of this decision and order. Signed by Hon. Lawrence J. Vilardo on 07/28/2020. (CEH)-CLERK TO FOLLOW UP-
Case 1:18-cv-00231-LJV Document 22 Filed 07/28/20 Page 1 of 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
LAYLA M. VOGT o/b/o Allen L. Vogt,
Plaintiff,
v.
18-CV-00231-LJV
DECISION & ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________
The plaintiff, Layla M. Vogt, is a prevailing party in this social security benefits
action. Her counsel has moved for attorney’s fees under 42 U.S.C. § 406(b)(1)(A).
Docket Item 20. The defendant does not oppose the motion. Docket Item 21.
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.
Id.
Vogt’s counsel seeks $15,051.75 in fees. Docket Item 20. That amount
constitutes 25% of Vogt’s past-due benefits, Docket Item 20-4 at 2, and is consistent
with the contingent-fee agreement that provides for attorney fees in the amount of 25%
of any recovery, see Docket Item 20-2.
Case 1:18-cv-00231-LJV Document 22 Filed 07/28/20 Page 2 of 3
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. 1 Id. The $15,051.75 fee request is therefore
granted under 42 U.S.C. § 406(b)(1)(A).
By stipulation approved and ordered on December 10, 2019, this Court
previously awarded Vogt’s counsel $6,224.29 in fees under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). Docket Items 18, 19. Because the fees granted
above exceed the EAJA fees, Vogt’s counsel must refund the EAJA fees to her. See
Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988).
1
While the fee here constitutes an hourly rate of over $456—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
Case 1:18-cv-00231-LJV Document 22 Filed 07/28/20 Page 3 of 3
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 $15,051.75, Docket Item 20, is GRANTED;
and it is further
ORDERED that Vogt’s counsel shall refund the $6,224.29 in EAJA fees to Vogt
within 14 days of the entry date of this decision and order.
SO ORDERED.
Dated:
July 28, 2020
Buffalo, New York
/s/ Hon. Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
3
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