United States District Court, W.D. Wisconsin
D. PETERSON District Judge
15, 2015, the court reversed and remanded the
Commissioner's decision denying plaintiff Debra
Phillips' application for disability benefits. Dkt. 9.
The court awarded plaintiff's attorney fees in the amount
of $3, 872.61 under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412. Dkt. 15. On remand, the Administration
awarded plaintiff $67, 807 in past-due benefits.
plaintiff's attorney petitions the court for a
representative fee award in the amount of $11, 190, pursuant
to 42 U.S.C. § 406(b). Plaintiff signed a contingent fee
contract and agreed to pay her attorney up to
“twenty-five percent (25%) of the past due
benefits” awarded. Dkt. 20-1, at 2. The Commissioner
has indicated that she does not oppose the award.
42 U.S.C. § 406(b), the court may award a claimant's
attorney a representative fee for his or her work before the
court. This section of the Social Security Act provides that
“a prevailing claimant's fees are payable only out
of the benefits recovered; in amount, such fees may not
exceed 25 percent of past-due benefits.” Gisbrecht
v. Barnhart, 535 U.S. 789, 792 (2002). Plaintiff's
attorney must demonstrate that within the 25 percent cap, the
requested fee is reasonable. Id. at 807, 809;
see also McGuire v. Sullivan, 873 F.2d 974, 980 (7th
Cir. 1989) (“A court may award a fee up to that
provided in the contract so long as the court has reviewed
evaluating a representative fee for reasonableness,
“the court may consider the character of the
representation and the results obtained, reducing an award if
. . . the fee is so large in comparison to the amount of time
counsel spent on the case such that the fee would constitute
a windfall to the attorney.” Koester v.
Astrue, 482 F.Supp.2d 1078, 1081 (E.D. Wis. 2007)
(citing Gisbrecht, 535 U.S. at 808). “In
determining what is a reasonable fee, the court should
consider: the time and labor required; the skill required;
whether the fee was contingent or fixed; the amount involved
and the result attained; the attorney's experience,
reputation, and ability; and awards in similar cases.”
Hodges-Williams v. Barnhart, 400 F.Supp.2d 1093,
1099 (N.D. Ill. 2005) (citing McGuire, 873 F.2d at
plaintiff's attorney represents that his team spent 21
hours litigating plaintiff's case before this court.
Plaintiff's attorney briefed a motion for summary
judgment and provided well-reasoned arguments in support of
remand. And plaintiff's attorney obtained favorable
results for Ms. Phillips: the Commissioner chose to
voluntarily remand the case and on a second hearing the ALJ
found Ms. Phillips disabled.
court notes that the contingency fee here is equivalent to an
attorney compensation rate of approximately $533 per hour
($11, 190 for 21 hours of work). But the court will not
discount the fee just because it will compensate
plaintiff's attorney at a higher than usual hourly rate.
Contingent fee agreements often reflect larger hourly rates;
contingent fee agreements account for the attorney's risk
of non-recovery, and awarding the fee consistent with the
parties' agreement incentivizes attorneys to represent
social security claimants. “If courts regularly
invalidated reasonable contingency agreements in favor of a
lodestar fee, then attorneys would no longer enter into such
agreements.” McGuire, 873 F.2d at 980. For
these reasons, district courts across the country have
awarded representative fees that reflect varying hourly
rates, including $446, $625, $636, and $1, 500.
Koester, 482 F.Supp.2d at 1083 (collecting cases).
Because plaintiff's attorney skillfully litigated
plaintiff's case, because he obtained favorable results
for his client, and because the contingent fee agreement
supports the requested award, the court will grant the
unopposed petition for the requested attorney fee. See
Kopulos v. Barnhart, 318 F.Supp.2d 657, 669 (N.D. Ill.
2004) (awarding the requested representative fee because
“it is consistent with the Contract entered into
between Petitioner and Plaintiff, it is consistent with the
25% statutory cap for SSA fees, and the Commissioner has no
objection to the amount of the SSA award”).
final note: as plaintiff's attorney acknowledges, this
award requires plaintiff's attorney to return the
previously awarded $3, 872.61 EAJA fee award to plaintiff.
When an attorney receives fees for the same work under both
§ 406(b) and the EAJA, the attorney must return the
smaller fee to plaintiff; the EAJA fee award
“offsets” the § 406(b) award.
Gisbrecht, 535 U.S. at 796 (“Fee awards may be
made under both prescriptions, but the claimant's
attorney must ‘refun[d] to the claimant the amount of
the smaller fee.'” (quoting Act of Aug. 5, 1985,
Pub. L. 99-80, § 3, 99 Stat. 186)).
ORDERED that plaintiff's attorney's petition for
attorney fees pursuant to § 406(b), Dkt. 17, is GRANTED.
The court approves the representative fee award of $11, 190,