Prust, Mikaela v. Bisignano, Frank

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MIKAELA PRUST,
Plaintiff,
v.
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
ORDER
18-cv-337-wmc
On October 5, 2018, the court issued an order reversing and remanding this case to the
commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g). Now before
the court is plaintiff Mikaela Prust’s attorney’s petition for fees pursuant to § 406(b) in the
gross amount of $6,208.19. (Dkt. #16.)
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 net amount of $1,723.98, which
represents the difference between the prior Equal Access to Justice Act (“EAJA”) fee award of
$4,484.21 (see dkt. #15), and 25% of the past-due benefits and auxiliary benefits awarded to
plaintiff, totaling $6,208.19. Defendant does not take a position on the reasonableness of the
requested fee or on counsel’s request that counsel retain the EAJA award and receive the net
award from past-due benefits. (Dkt. #19.)
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 $6,208.19 in total
fees requested by counsel are reasonable in light of the time he and members of his firm spent
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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; therefore, even 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) (“[A]n EAJA award offsets an
award under Section 406(b).”). In accordance with the court’s past practice, however, the
court will allow counsel to retain the EAJA award, and the court will subtract the EAJA award
from the amount awarded in this order.
ORDER
IT IS ORDERED that:
1) Counsel’s motion for attorney fees under 42 U.S.C. § 406(b)(1) (dkt. #16) is
GRANTED.
2) The court approves representative fees under § 406(b) in the gross amount of
$6,208.19.
3) Counsel may retain the $4,484.21 previously awarded in EAJA fees in partial
satisfaction of the § 406(b) award.
4) The net amount of $1,723.98 shall be disbursed by the Commissioner from any of
plaintiff’s past-due benefits being withheld and in accordance with agency policy.
Entered this 2nd day of February, 2026.
BY THE COURT:
/s/
____________________________
WILLIAM M. CONLEY
District Judge
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