Schiller v. Colvin
Filing
28
ORDER signed by Judge J.P. Stadtmueller on 9/1/2017 GRANTING 26 Motion for Attorney's Fees. Commissioner to pay $36,549.00 from the withheld funds directly to Plaintiff's counsel, Frederick Daley. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AARON W. SCHILLER,
Plaintiff,
v.
Case No. 15-CV-1311-JPS-JPS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
ORDER
On June 13, 2016, the Court remanded this case to the Commissioner
of Social Security, pursuant to the parties’ stipulation. (Docket #21, #22, and
#23). 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
$13,660.65.1 On March 14, 2017, the Commissioner, considering the matter
on remand, issued a fully favorable decision to Plaintiff. (Docket #26 at 1).
On August 23, 2017, 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 his counsel originally negotiated counsel’s fee at twenty-five percent of
whatever past-due benefits would be awarded to him. 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
That amount is comprised of two smaller amounts awarded in two
separate district court actions brought by Plaintiff, who was represented in both
cases by the same attorney. See (Docket #26 at 2). The instant action is one of those
two.
1
before the Court. 42 U.S.C. § 406(b)(1)(A). The fee cannot exceed twentyfive 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 his
outstanding fee under Section 406(b) is $36,549.00. (Docket #26 at 2).
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 #27).
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).2
Accordingly,
IT IS ORDERED that the motion for an award of attorney’s fees
pursuant to 42 U.S.C. § 406(b) (Docket #26) be and the same is hereby
GRANTED; the Commissioner shall pay $36,549.00 from the withheld
funds directly to Plaintiff’s counsel, Frederick Daley.
Dated at Milwaukee, Wisconsin, this 1st day of September, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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). The instant
motion suggests—though it does not actually state—that Plaintiff’s counsel has
not yet been paid the Court’s earlier EAJA awards. See (Docket #26 at 6). He
represents, however, that he will credit to Plaintiff the EAJA fees. Id.
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