Washington v. Berryhill

Filing 36

ORDER signed by Judge J P Stadtmueller on 1/27/2022. IT IS ORDERED that Plaintiff's amended motion for attorneys fees pursuant to 42 U.S.C. § 406(b)(1) (Docket # 33 ) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that Plaintif f's earlier motions for attorney's fees (Docket # 26 , # 29 ) be and the same are hereby DENIED as moot; and IT IS FURTHER ORDERED that the Commissioner shall pay $8030.00 from the withheld funds to Plaintiff's counsel, Dana W. Duncan. Upon receipt of the money, Attorney Dana W. Duncan must refund the $4,100.30 that was awarded under the EAJA directly to Plaintiff. (cc: all counsel)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KENNETH WASHINGTON,
Plaintiff,
v.

Case No. 18-CV-670-JPS

KILOLO KIJAKAZI, Acting
Commissioner of Social Security,

ORDER

Defendant.
On November 20, 2018, the Court remanded this case to the
Commissioner of Social Security pursuant to the parties’ stipulation.
(Docket #15, #16, #17). On December 19, 2018, Plaintiff filed a motion for an
award of attorney’s fees and costs pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412, (Docket #18), which was followed by a
stipulation of non-objection to the petition for fees under the EAJA, (Docket
#24), which the Court adopted, (Docket #25).
On June 6, 2020, Plaintiff filed a motion for attorney’s fees pursuant
to 42 U.S.C. § 406(b)(1), which allows a successful claimant who was
represented by counsel to receive “as part of its judgment a reasonable fee
for such representation, not in excess of 25 percent of the total of the pastdue benefits to which the claimant is entitled by reason of such judgment.”
(Docket #26). Plaintiff sought a fee of $13,201.87. (Id.; Docket #27 at 1). The
Government did not oppose this motion. (Docket #28).
On September 2, 2021, Plaintiff filed an amended motion for
attorney’s fees, this time seeking $8,030.00, which accounted for 25 percent
of Plaintiff’s total past-due benefits, (a total of $13,201.87), and 25 percent of

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those benefits awarded his daughter (a total of $1,186.25) minus $6,358.12,
which was sought administratively by way of a petition to the
Administrative Law Judge (the “ALJ”). (Docket #29, #30 at 2). The
Government sought an extension of time to file a response and noted that
it had made Plaintiff aware of a problem with the amended motion—
specifically, there was no substantiation that Plaintiff’s daughter had been
awarded past-due benefits. (Docket #32). On October 2, 2021, Plaintiff filed
a second amended motion for attorney’s fees, again seeking $8030.00
broken down as 25 percent of Plaintiff’s total past-due benefits, (a total of
$13,201.87) minus $5,171.87, which it sought from the ALJ. (Docket #34 at 2).
The Government noted that this amended petition contained a different
amount of fees sought from the ALJ, and, upon contacting Plaintiff’s
counsel, was informed that counsel had yet to petition for administrative
funds but would seek $5,171.87. (Docket #35 at 1–2).
Relying on Plaintiff’s counsel’s representations, the Commissioner
did not oppose the award of $8030.00. Having considered the parties’
briefing on the issue and in light of the non-opposition, the Court will grant
the most recent motion, and deny the earlier motions as moot.
Accordingly,
IT IS ORDERED that Plaintiff’s amended motion for attorney’s fees
pursuant to 42 U.S.C. § 406(b)(1) (Docket #33) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s earlier motions for
attorney’s fees (Docket #26, #29) be and the same are hereby DENIED as
moot; and
IT IS FURTHER ORDERED that the Commissioner shall pay
$8030.00 from the withheld funds to Plaintiff’s counsel, Dana W. Duncan.
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Upon receipt of the money, Attorney Dana W. Duncan must refund the
$4,100.30 that was awarded under the EAJA directly to Plaintiff.
Dated at Milwaukee, Wisconsin, this 27th day of January, 2022.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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