Nikkila v. Saul

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BRENDA N.,1
Plaintiff,
vs.
DR. KILOLO KIJAKAZI,2 Acting
Commissioner, Social Security
Administration,
Defendant.
5: 19-CV-05059-DW
REDACTED ORDER GRANTING
MOTION FOR ATTORNEY FEES
Plaintiff filed a motion for attorney's fees pursuant to 42 U.S.C. § 406(b).
(Doc. 32). 	Section 406(b) provides:
(l)(A) Whenever a court renders a jud gment favorable to a
claimant under this subchapter who was represented before the
court by an attorney, the court may determine and allow as part
of its judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to which
the claimant is entitled by reason of such judgment, and the
Commissioner of Social Security may ... ce r tify the amount of
1 The Administrative Office of the Judiciary suggested the court be more
mindful of protecting from public access the private information in Social
Security opinions and orders. 	For that reason, the Western Division of the
District of South Dakota will use the fir st name and last initial of every non-
governm ental person mentioned in the opinion. 	This includes the names of
non - governmental parties appearing in case captions .
2 Dr . Kilolo Kijakazi became the Acting Commission er of Social Security
on July 9, 202 1. 	Pursuant to Fed. R. Civ. P. 25(d), Dr. Kijakazi is
automatica lly substituted for Andrew Sau l as the defendant in a ll pending
social secur i ty cases . 	No further action n ee d b e t aken to continu e this suit by
reason of th e last sentence of section 205(g) of the Social Security Act ,
42 u.s.c. § 405(g).
t
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such fee for payment to such attorney out of, and not in addition
to, the amount of such past-due benefits .. . .
42 U.S.C . § 406(b)(l)(A). 	Plaintiff was the successful party in this litigation.
(Docs. 25, 26). 	The Commissioner does not oppose Pl aintiff's motion. 	(Doc.
36).
Following the court's order reversing the decision of the agency and
remanding for calculation and award of benefits (Doc. 25), the Commissioner
awarded past due benefits (Doc. 35-1) . 	Under§ 406(b)(l)(A), the Commissioner
withheld 25 percent of that amount, $11,666.13, for payment of attorney's fees.
(Doc. 35 - 1).
The court previously awarded attorney's fees of $4,978 und er
28 U.S.C. § 2412, the Equal Access to Justice Act ("EAJA"). 	(Doc. 31).
This EAJA payment constitutes an offset against any further award of
attorney's f ees. 	(Doc. 31). 	Plaintiff's counsel represents that she has already
been paid $6,000 from the Commissioner. 	(Docs. 32, 33). 	As suc h, Pla intiff's
counsel is seeking a final net payment of $688.13 from the sum being withheld
by the Commissioner. 	(Doc. 32).
"The Supreme Court stated that, while the district court may consider
the hourly rate in determining the reasonableness of a fee award, the court
must first consider the fee agreement, testing it for reasonableness; then
reduce the fees based on th e char acter of the representation and r esults
achieved, whether counsel was responsible for delay, and whether the benefits
achieved were lar ge in comparison to the time expended by coun se l." 	Jones v.
2
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Berryhill, 699 Fed. Appx. 587, 588 (8th Cir . 2017) (unpublished) (citing
Gisbrecht v. Barnhart, 535 U.S. 789, 807 - 08 (2002)).
The court analyzed the reasonableness of the contingent fee agreement,
the nature of counsel's representation of Plaintiff and the fee award as Jones
and Gisbrecht require. 	Plaintiff demonstrates the fee agreement is reasonable .
(Docs. 33, 35). 	The character of Plaintiff's representation and the results
achieved support concluding the fee award is reasonable. 	The court finds the
fee agreement and fee award adequately fit within the requirements Jones and
Gisbrecht set forth.
Accordingly, it is
ORDERED that Plaintiff's motion for attorney's fees (Doc. 32) is granted.
IT IS FURTHER ORDERED that pursuant to 42 U.S .C. § 406(b)(l)(A)
Plaintiff's attorn ey , Margo Tschetter Julius, is entitled to an award of
$11,666.13 for attorney's fees for her professional services in this case.
IT IS FURTHER ORDERED that the EAJA payment of $4,978 is an offset
or credit against this award.
IT IS FURTHER ORDERED that the Commissioner shall p ay Attorney
Margo Tschetter Julius, 1600 Mountain View Road, Suite 110 , Rapid City, SD
57702, the net sum of $688.13 out of th e funds being held for this purpose
pursuant to 42 U .S .C. § 406(b)(l)(A).
IT IS FURTHER ORDERED that the Commissioner shall pay Plaintiff the
rem a ining sum of $4,978 out of the funds being held pursuant to
42 U.S.C. § 406(b)(l)(A).
3
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DATED this 19th day of January, 2022.
BY THE COURT :
DANETA WOLLMANN
United States Magistrate Judge
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