Xiong, Vang v. Berryhill, Nancy
Filing
19
ORDER granting 18 Motion for Attorney Fees. Plaintiff awarded attorney fees in the amount of $3,460.75. Signed by District Judge William M. Conley on 2/8/2019. (voc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
VANG XIONG,
Plaintiff,
ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
17-cvB71-wmc
Defendant.
On July 11, 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 Vang Xiong’s
attorney’s petition for fees pursuant to § 406(b)(1) in the amount of $3,460.75 (dkt. #18),
to which defendant has not objected.
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 $3,460.75,
which represents the difference between the prior EAJA fee award of $6,500.00 (dkt. #16)
and $9,960.75 withheld from the amount awarded to plaintiff in past-due benefits.
Having considered the supporting materials filed by plaintiff's attorney, and hearing no
objection from plaintiff or defendant, the court will grant the motion. The fees requested
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by counsel are reasonable in light of the time she spent on this case and the favorable result
she 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 $3,460.75 (dkt. #18) is GRANTED. That sum
shall be released to plaintiff’s counsel and the remaining portion of the withheld money,
$6,500.00, shall be released to plaintiff Vang Xiong.
Entered this 8th day of February, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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