United States District Court, W.D. Wisconsin
KENNETH C. WAPPLER, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
D. PETERSON District Judge
on the parties' joint motion, Dkt. 15, this court
reversed the Commissioner's decision denying plaintiff
Kenneth C. Wappler's application for disability benefits
and remanded the case for further proceedings. Dkt. 16. The
court awarded plaintiff's attorney fees in the amount of
$8, 833.23 under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412. Dkt. 22. On remand, the Administration
awarded plaintiff $49, 851 in past-due benefits.
plaintiff's attorney petitions the court for a
representative fee award of $12, 462.75 under 42 U.S.C.
§ 406(b). Plaintiff signed a contingent fee contract and
agreed to pay his attorney up to “25% of the past-due
benefits” awarded. Dkt. 24-3, at 1. The Commissioner
has indicated that she does not oppose the award. Dkt. 24,
§ 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 her team spent 49.84
hours litigating plaintiff's case before this court (44.3
hours in attorney time, 5.54 hours in paralegal time).
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 Mr. Wappler.
court notes that the contingency fee here is equivalent to an
attorney compensation rate of approximately $281 per hour
($12, 462.75 for 44.3 hours of work). This is a reasonable
rate, especially when considering that 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. 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 obtained favorable results
for her 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. This award would normally require plaintiff's
attorney to return the previously awarded $8, 833.23 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)). But here, the entire
EAJA fee award was offset to satisfy plaintiff's
pre-existing child support debt. Because plaintiff's
attorney never received the EAJA fee award, she need not
return the EAJA fee amount to plaintiff.
ORDERED that plaintiff's attorney Meredith E.
Marcus's unopposed petition for attorney fees under
§ 406(b), Dkt. 24, is GRANTED. The court ...