Roman v. Colvin

Filing 24

ORDER signed by Judge J.P. Stadtmueller on 5/1/2017 GRANTING 21 Motion for Award of Attorney's Fees Pursuant to 42 U.S.C. § 406(b). Commissioner to pay $9,396.75 from withheld funds directly to Plaintiff's lead counsel, Thomas E. Bush. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTINA LU ROMAN,
Plaintiff,
v.

Case No. 14-CV-1541-JPS

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

ORDER
Defendant.
On May 13, 2015, the Court remanded this case to the Commissioner
of Social Security, pursuant to the parties’ stipulation. (Docket #16, #17, and
#18). After remand, the parties stipulated, and the Court ordered, that
Plaintiff’s counsel should receive an award of attorney’s fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of
$4,700. (Docket #20). On April 18, 2016, the Commissioner, considering the
matter on remand, issued a fully favorable decision to Plaintiff. (Docket #21
at 1).
On October 31, 2016, Plaintiff’s counsel filed a motion for an award of
attorney’s fees pursuant to 42 U.S.C. § 406(b)(1). Id. In this case, Plaintiff and
her counsel originally negotiated counsel’s fee at twenty-five percent of
whatever past-due benefits would be awarded to her and her family. Id.
Section 406(b) permits the Court to award this agreed-upon fee. It provides
that, after entering judgment in favor of a claimant who was represented by
counsel, the Court may award the attorney a reasonable fee for his or her
work before the Court. 42 U.S.C. § 406(b)(1)(A). The fee cannot exceed
twenty-five percent of the total past-due benefits to which the claimant is
entitled by reason of the judgment. Id. In this case, counsel represents that

their outstanding fee under Section 406(b), less amounts already paid, is
$9,396.75. (Docket #21 at 2). This amount includes $8,200 that the
Commissioner is already withholding for purposes of a fee award, plus
$1,196.75 that should have been withheld, but was not, from a portion of
benefits paid to Plaintiff’s son. Id.
The Commissioner, acting in a role “resembling that of a trustee” for
Plaintiff, Gisbrecht v. Barnhart, 535 U.S. 789, 798 (2002), has filed a response
indicating that she does not opposed counsel’s requested fees. (Docket #23).
In light of counsel’s submissions and Defendant’s non-opposition, the Court
finds that the fees requested are both reasonable and necessary and qualify
under Section 406(b).1
Accordingly,
IT IS ORDERED that the motion for an award of attorney’s fees
pursuant to 42 U.S.C. § 406(b) (Docket #21) be and the same is hereby
GRANTED; the Commissioner shall pay $9,396.75 from the withheld funds
directly to Plaintiff’s lead counsel, Thomas E. Bush.
Dated at Milwaukee, Wisconsin, this 1st day of May, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

1

Counsel are required to refund amounts paid to them under the EAJA if
they are awarded fees under Section 406(b). 42 U.S.C. § 406(b)(1)(A). But counsel
notes that the $4,700 the Court previously awarded them under the EAJA was
never actually paid because the government confiscated it to pay Plaintiff’s student
loans. (Docket #21 at 2).

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