Johnson, Christopher v. Berryhill, Nancy

Filing 23

ORDER granting 21 Motion for Attorney Fees. Signed by District Judge William M. Conley on 6/29/2020. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTOPHER T. JOHNSON,
Plaintiff,

ORDER

v.

18-cvB310-wmc

ANDREW SAUL,
Commissioner of Social Security,
Defendant.

On October 10, 2018, 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. Judgment was also entered on October 10, 2018.
Now before the court is plaintiff Christopher Johnson’s attorney’s petition for fees
pursuant to 42 U.S.C. § 406(b)(1) in the amount of $22,228.50.

(Dkt. #21.)

Defendant does not object to this motion. (Dkt. #22.)

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 $22,228.50,
which represents 25 percent of $88,914.00 that was 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 by counsel are reasonable in light of the time he and members of her firm spent

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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.1 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 attorney fees under 42 U.S.C.
§ 406(b)(1) in the amount of $22,228.50 (dkt. #21) is GRANTED.
Entered this 29th day of June, 2020.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

The court also notes that counsel was previously awarded EAJA fees in the amount of $5,016.06.
(Dkt. #20.)
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