Kalina, David v. Berryhill, Nancy

Filing 22

ORDER granting 20 Motion for Attorney Fees. Plaintiff awarded attorney fees in the amount of $18,493.75. Signed by District Judge William M. Conley on 5/19/2020. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAVID KALINA,
Plaintiff,

ORDER

v.

17-cvB222-wmc

ANDREW SAUL,
Commissioner of Social Security,
Defendant.

On October 4, 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 David Kalina’s
attorney’s petition for fees pursuant to § 406(b)(1) in the amount of $18,493.75. (Dkt.
#20.) Defendant does not object to this motion. (Dkt. #21.)
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 $18,493.75,
which represents 25 percent of the amount awarded to plaintiff in past-due benefits. 1
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

The court notes that 25 percent of $97,975 is $24,493.75; however, other counsel
submitted an administrative fee petition in the amount of $6,000.00.
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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 awards under both the EIJA and
§ 406(b)(1).2 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 $18,493.75 (dkt. #20) is GRANTED.
Entered this 19th day of May, 2020.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

The court notes that counsel was previously awarded EAJA fees in the amount of $7,500.00.
(Dkt. #17.)
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