Lopez v. Berryhill
Filing
25
ORDER signed by Judge William C Griesbach on 10/7/2021 granting 23 Motion for Attorney Fees. Attorney Tabak is entitled to attorney's fees in the amount of $12,192.88. (cc: all counsel)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PATRICIA LOPEZ,
Plaintiff,
v.
Case No. 18-C-1206
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
ORDER
This matter comes before the Court on Plaintiff’s motion for attorney’s fees in the amount
of $12,192.88 to be paid to Attorney Fred N. Tabak from Plaintiff’s past due benefits under 42
U.S.C. § 406(b). The Commissioner does not object to the amount of the fee requested. For the
following reasons, the motion will be granted.
A court may allow as part of its judgment “a reasonable fee . . . not in excess of 25 percent
of the total of past-due benefits to which the claimant is entitled by reason of such judgment.” 42
U.S.C. § 406(b)(1). The “25% cap applies only to fees for representation before the court, not the
agency.” Culbertson v. Berryhill, 139 S. Ct. 517, 522 (2019). Section 406(b)(2) “makes it a
misdemeanor for any attorney to charge, demand, receive, or collect a fee for court representation
in excess of that permitted under § 406(b)(1).” O’Donnell v. Saul, 983 F.3d 950, 952–53 (7th Cir.
2020) (internal quotation marks, citations, and alterations omitted). Under the Savings Provision,
“an attorney does not commit a misdemeanor by accepting fees under both the EAJA and § 406(b)
for the same work” when the “‘claimant’s attorney refunds to the claimant the amount of the
smaller fee.’” Id. at 956 (quoting Pub. L. No. 99-80, § 3, 99 Stat. 183 (Aug. 5, 1985)).
In this case, the Court reversed the Commissioner’s decision, remanded the matter for
further administrative proceedings, and awarded Plaintiff attorney’s fees under the Equal Access
to Justice Act (EAJA), 28 U.S.C. § 2412, in the amount of $4,600.00.
On remand, the
Administrative Law Judge issued a favorable decision, and as things stand, the Social Security
Administration is withholding $12,192.88 from Plaintiff. The fee Plaintiff seeks is $16,792.88,
but recognizing that Attorney Tabak cannot recover fees under both the EAJA and § 406(b) for
the same work performed, and further recognizing that, if he does, he must refund the EAJA award
amount to Plaintiff, Plaintiff instead asks the Court to offset the EAJA award from the requested
§ 406(b) fee. In other words, Plaintiff seeks an award of attorney’s fees in the amount of
$12,192.88, representing the initial fee requested minus the $4,600.00 awarded by this Court under
the EAJA. While the Court recognizes that this “netting method” is “disfavored,” O’Donnell, 983
F.3d at 957 (7th Cir. 2020), the Court finds it to be appropriate here, where the amount being
requested is the remaining amount being withheld. Therefore, the Court finds Plaintiff’s request
reasonable.
Accordingly, Plaintiff’s motion for attorney’s fees (Dkt. No. 23) is GRANTED. Attorney
Tabak is entitled to attorney’s fees in the amount of $12,192.88.
Dated at Green Bay, Wisconsin this 7th day of October, 2021.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
2
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