Hull v. Colvin

Filing 30

ORDER signed by Chief Judge Pamela Pepper on 12/21/2020 GRANTING 29 plaintiff's unopposed motion for attorney fees under 42 USC §406(b). Court awards Atty. Thomas Bush attorney fees of $20,584.40; Commissioner to pay this fee from amount withheld for direct payment of attorney fees; Atty. Bush to refund EAJA fees of $4,996.99 to plaintiff. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARILYN HULL,
Plaintiff,
Case No. 17-cv-4-pp
v.
ANDREW SAUL,
Defendant.
ORDER GRANTING UNOPPOSED MOTION FOR ATTORNEY FEES UNDER
42 U.S.C. §406(B)
On August 9, 2017, the court approved the parties’ stipulation for
remand and remanded this case to the Commissioner of the Social Security
Administration. Dkt. No. 21. The parties stipulated to an award of attorney fees
under the Equal Access to Justice Act in the amount of $4,996.99, which the
court approved on October 17, 2017. Dkt. No. 28. On a subsequent remand
from the Appeals Council, the ALJ issued a fully favorable decision for the
plaintiff. Dkt. No. 29 at 1-2. The plaintiff has filed a motion for attorney fees
under 42 U.S.C. §406(b), asking that a total fee of $20,584.40 be paid to
Attorney Thomas Bush with the previous EAJA award refunded to the plaintiff.
Id. at 2. The court will grant the unopposed motion and award the additional
fees.
I.

Legal Standard
An attorney who succeeds in obtaining benefits for a social security

claimant may recover fees under 42 U.S.C. §406. “‘Section 406(a) governs fees
for representation in administrative proceedings before the Social Security
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Administration; § 406(b) controls fees for representation in federal court.’”
Kopulos v. Barnhart, 318 F. Supp. 2d 657, 660 (N.D. Ill. 2004) (citing
Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)). The statute provides for a
reasonable fee not to exceed 25% of the past-due benefits awarded to the
claimant. Id. at 661. Such fees are deducted from the claimant's benefits and
do not constitute an award against the government. Id.
A motion for fees under §406(b) requires court approval. Congress did
not intend such review to override the claimant and counsel’s fee arrangement
but rather to act as an “independent check” to ensure the arrangement yielded
a reasonable result. Gisbrecht, 535 U.S. at 807. Within the 25% boundary, the
attorney for the successful claimant must show that the fee sought is
reasonable for the services rendered. Id. In making its determination, the court
may consider the character of the representation and the results obtained,
reducing the award if the attorney is responsible for delay in the proceedings
that had the effect of inflating past-due benefits, or if the fee is so large in
comparison to the amount of time the counsel spent on the case that the fee
would constitute a windfall for the attorney. Id. at 808.
II.

Analysis
The plaintiff signed a contract with her attorney on November 23, 2016,

agreeing to a 25% total fee for representation before the agency and the court.
Dkt. No. 29-1. The second sentence of the fee contract stated:
I agree that my attorney shall charge and receive as the fee an
amount equal to twenty-five percent (25%) of the past-due benefits
that are awarded to my family and me in the event my case is won.
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Id. at 1.
Because the award is paid out of past due benefits rather than agency
funds, the government will not stipulate to the fees. However, the plaintiff
represents that the government does not oppose the motion. Dkt. No. 29 at 1.
The record establishes that the plaintiff prevailed, the requested fee is
reasonable for the services rendered, the plaintiff agreed to pay 25% of
whatever past-due benefits were awarded to her, and Attorney Bush says that
he will account for the EAJA offset by refunding $4996.99 to the plaintiff. For
these reasons, the court will grant the motion for §406(b) attorney's fees.
III.

Conclusion
The court GRANTS the plaintiff's motion for attorney's fees under 42

U.S.C. §406(b). Dkt. No. 29. The court AWARDS Attorney Thomas Bush
attorney fees in the amount of $20,584.40. The Commissioner shall pay this
fee to Attorney Bush from the amount withheld for direct payment of attorney
fees. Counsel shall refund the EAJA fees totaling $4,996.99 to the plaintiff.
Dated in Milwaukee, Wisconsin this 21st day of December, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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