Wantock, Daniel v. Colvin, Carolyn

Filing 28

ORDER granting 25 Motion for Attorney Fees. Plaintiff awarded attorney fees in the amount of $11,244.63. Signed by District Judge William M. Conley on 6/28/2019. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DANIEL WANTOCK,
Plaintiff,

ORDER

v.

14-cvB741-wmc

ANDREW SAUL,
Commissioner of Social Security,
Defendant.

On November 28, 2017, the court issued an order and judgment remanding this
case to the commissioner for further proceedings under sentence four of 42 U.S.C. ' 405(g)
pursuant to stipulation of the parties. Now before the court is plaintiff Charles Hewett’s
attorney’s petition for fees pursuant to § 406(b)(1) in the amount of $11,244.63. (Dkt.
#25.) Defendant does not object to this motion. (Dkt. #27.)

Fees under 42 U.S.C. ' 406
As part of its judgment, a court may allow “a reasonable fee . . . not in excess of 25
percent of the . . . past-due benefits” awarded to the claimant. § 406(b)(1)(A). The fee
is payable “out of, and not in addition to, the amount of [the] past-due benefits.” Id.
Counsel asks the court to approve an attorney fee award in the amount of $11,244.63,
which represents the difference between the prior EAJA fee award and 25 percent of the
award to plaintiff in past-due benefits.1 Having considered the supporting materials filed

The court notes that 25 percent withheld from past due benefits was $21,244.63;
however counsel was previously awarded EAJA fees in the amount of $5,000 (dkt. #23)
and has submitted a fee petition to the administrative law judge in the amount of $5,000.
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by plaintiff's attorney, and hearing no objection from plaintiff or defendant, the court will
grant the motion. The fees requested by counsel are reasonable in light of the time he
spent on this case and the favorable result he obtained for plaintiff while working on a
contingency basis.
Of course, counsel is not allowed to recover both awards. Section 406(b) has been
harmonized with the EAJA; though fee awards may be made under both the EAJA and
§ 406(b), a claimant's attorney must refund to the claimant the amount of the smaller fee.
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (explaining that “an EAJA award offsets
an award under Section 406(b)”).

ORDER
IT IS ORDERED that counsel’s motion for reasonable attorney fees under 42
U.S.C. § 406(b)(1) in the amount of $11,244.63 (dkt. #25) is GRANTED.
Entered this 28th day of June, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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