United States District Court, E.D. Wisconsin
DECISION AND ORDER APPROVING AN AWARD OF
ATTORNEY’S FEES PURSUANT TO 42 U.S.C. §
JOSEPH UNITED STATES MAGISTRATE JUDGE
March 30, 2015, I reversed the Social Security
Commissioner’s decision denying Guadalupe
Garcia’s application for disability insurance benefits
and remanded the case for further proceedings. (Docket # 20.)
I denied Garcia’s request for attorney’s fees
under the Equal Access to Justice Act ("EAJA"), 28
U.S.C. § 2412, finding that the Commissioner’s
position was substantially justified. (Docket # 28.)
Following further administrative proceedings, the
Commissioner found Garcia disabled and the Social Security
Administration informed Garcia’s counsel that it was
withholding $16, 382.45, which represents 25% of
Garcia’s past-due benefits. (Docket # 30-1 at 4.) The
Administration noted that $6, 000.00 was used to pay an
authorized fee and stated that it was still withholding $10,
382.45 for the purpose of paying attorney’s fees
approved by the Court . (Id.) Counsel now seeks
approval pursuant to 42 U.S.C. § 406(b) of fees in the
amount of $10, 382.45 under his contingency fee agreement
with plaintiff. (Docket # 30.) The Commissioner does not
oppose Garcia’s motion. (Docket # 29.)
attorney who succeeds in obtaining benefits for a social
security claimant may recover fees pursuant to 42 U.S.C.
§ 406. Section 406(a) governs fees for representation in
administrative proceedings before the Social Security
Administration; § 406(b) controls fees for
representation in federal court. Kopulos v.
Barnhart, 318 F.Supp.2d 657, 660 (N.D. Ill. 2004)
(citing Gisbrecht v. Barnhart, 535 U.S. 789, 794
(2002)). The statute provides for a "reasonable
fee" not to exceed 25% of the past-due benefits awarded
to the claimant. Id. at 661. Such fees are deducted
from the claimant’s retroactive benefits; they do not
constitute an award against the government. Id.
court must approve any fee under § 406(b). Congress
intended such review not to override the claimant and
counsel’s fee arrangement but rather to act as an
"independent check" to ensure that the arrangement
yielded a reasonable result in the particular case.
Gisbrecht, 535 U.S. at 807. "Congress has
provided one boundary line: Agreements are unenforceable to
the extent that they provide for fees exceeding 25 percent of
the past-due benefits." Id. Within the 25%
boundary, the attorney for the successful claimant must show
that the fee sought is reasonable for the services rendered.
Id. In making this determination, the court may
consider the character of the representation and the results
obtained, reducing an award if the attorney is responsible
for delay in the proceeding that had the effect of inflating
past-due benefits, or if the fee is so large in comparison to
the amount of time counsel spent on the case that the fee
would constitute a windfall to the attorney. Id. at
case, Garcia entered into a 25% contingency fee agreement
with counsel. (Docket # 23-3.) Twenty-five percent of
Garcia’s past-due benefits is $16, 382.45. (Docket #
30-1 at 3-4.) However, a payment of $6, 000.00 was deducted
from that amount due to a payment made to a lawyer in another
firm for work performed at the Social Security
Administration. (Docket # 30 at 1.) Counsel therefore seeks
an award of $10, 382.45 consistent with his 25% contingency
fee agreement, subtracting the amount already paid to another
law firm. Counsel states that Garcia entered into the fee
agreement with the understanding that counsel’s
attorney’s fee would be determined on the basis of
risk-related contingency, regardless of the amount of the
hourly fee. (Docket # 30 at 2.) Counsel contends that given
the intent of the parties, the risk he assumed in accepting
the case, the success achieved, and the effort spent winning
the case, the requested fee is reasonable. (Id.)
to Gisbrecht, I find the requested fee is
reasonable. First, Garcia’s counsel timely filed
comprehensive and well written briefs before this Court.
Second, the results obtained were fully favorable. Garcia was
awarded benefits, including $65, 529.80 in past due benefits.
Finally, the fee does not constitute a windfall to the
attorney. The amount sought by counsel under § 406(b) is
within the 25% permitted by law and provided for in the fee
agreement. The fee of $10, 382.45 for 45.60 hours of work
(Docket # 25-1) equates to an hourly fee of approximately
$228/hour, which is well within the realm of reasonable fees
approved by the courts in this circuit. See Koester v.
Astrue, 482 F.Supp.2d 1078, 1081 (E.D.Wis. 2007)
(approving hourly rate of $580.67 per hour for 38.80 hours of
court work); Stemper v. Astrue, No. 04-CV-838, 2008
WL 2810589, *1 (W.D. Wis. July 14, 2008) (approving rate
hourly rate of $666 per hour); Hussar-Nelson v.
Barnhart, No. 99 C 0987, 2002 WL 31664488, *3 (N.D. Ill.
Nov. 22, 2002) (approving hourly rate of approximately
$393.00 per hour for 53.90 hours of court work).
THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion
for an award of attorney’s fees pursuant to 42 U.S.C.
§ 406(b) is hereby GRANTED, and Attorney David ...