United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
light of the parties' joint motion, Dkt. 11, the court
reversed the Commissioner's decision denying plaintiff
Nichole Westlund's application for disability insurance
benefits and remanded the case for further proceedings. Dkt.
12. The court awarded Westlund's attorney $5, 637.45 in
attorney fees under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412. Dkt. 20. On remand, the Commissioner
determined that Westlund was disabled and awarded her $56,
007 in past-due benefits. Dkt. 22-2. And the Commissioner
awarded her son $15, 503 in past-due benefits. Dkt. 22-3.
Westlund's attorney, Dana Duncan, moves the court for a
representative fee award of $12, 240.05, pursuant to 42
U.S.C. § 406(b). Dkt. 22. Duncan seeks 25 percent of
Westlund's past-due benefits award, including her
son's award, or $17, 877.50, to be offset by Duncan's
EAJA fee award. Westlund agreed to a 25 percent contingency
fee (25 percent of all past-due benefits awarded to Westlund
and her family). Dkt. 22-1. The court will grant Duncan's
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). The requested fee
is within the cap, but the court must nevertheless review it
to ensure that it 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
fee agreements often produce fees that reflect large hourly
rates that are not per se unreasonable. Contingent fee
arrangements account for the attorney's risk of
non-recovery, and awarding a fee consistent with the
parties' agreement motivates attorneys to represent
social security claimants who could not otherwise afford
counsel. “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. Following this principle,
district courts across the country have awarded
representative fees that reflect varying hourly rates,
including $446, $625, $636, and even as high as $1, 500.
Koester, 482 F.Supp.2d at 1083 (collecting cases).
But when the contingent fee agreement would yield an
unreasonable windfall, courts have reduced the award under
§ 406(b) to an appropriate rate above the lodestar rate.
See, e.g., Schimpf v. Astrue, No. 06-cv-18,
2008 WL 4614658 (N.D. Ind. Oct. 16, 2008) (awarding a fee at
a reduced hourly rate of $583.50); Hodges-Williams,
400 F.Supp.2d at 1099-100 (awarding a fee at a reduced hourly
rate of $350).
the requested fee award is on the generous side of the
reasonable scale. Duncan seeks $17, 877.50 for 23.4 hours of
attorney time for work performed before this court, which
amounts to an hourly rate of about $764. See Dkt.
22-5. The fee, though a bit on the high side, is nevertheless
reasonable, considering the risks that Duncan assumes by
taking on contingency cases. And Duncan obtained favorable
results for his client: Duncan represented Westlund before
this court, reviewed the administrative record, drafted a
motion for summary judgment, and prompted a stipulated
remand, which resulted in a favorable determination below.
Duncan recognizes, the $17, 877.50 must be offset by the EAJA
fee award that he already recovered. Gisbrecht, 535
U.S. at 796. Duncan will need to refund the $5, 637.45 he
recovered in EAJA fees to Westlund.
final point. As this court has told Duncan, § 406(b)
representative fee awards are reviewed for reasonableness in
view of the attorney's time before this
court. See Heise v. Colvin, No. 14-cv-739 (W.D. Wis.
Dec. 15, 2016). The court cannot consider Duncan's work
from beginning to end; the court awards § 406(b) fees
for work performed here. The court considers only attorney
time when calculating the compensation rate, not paralegal or
“administrative” time. Duncan continues to brief
§ 406(b) motions as though the court can consider both
his work before the Commissioner in the administrative
portion of the case and his firm's non-attorney work. The
court's review of Duncan's fee requests would be
facilitated by briefing that recognizes the parameters of the
court's authority to award fees. Duncan risks denial of
future requests if he disregards this instruction.
ORDERED that plaintiff Nichole Westlund's attorney's
unopposed motion for attorney fees pursuant to 42 U.S.C.
§ 406(b), Dkt. 22, is GRANTED. The court approves a
representative fee award of $17, 877.50, ...