United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
to the Commissioner's motion to remand, Dkt. 20, the
court reversed the Commissioner's decision denying
plaintiff Chad Hansen's application for disability
insurance benefits and remanded the case for further
proceedings. Dkt. 21. Hansen's attorney, Dana Duncan, did
not at that point move for an award of fees under the Equal
Access to Justice Act. On remand, the Commissioner awarded
Hansen $52, 297.00 in past-due benefits.
Duncan moves the court for a representative fee award of $13,
074.25, pursuant to 42 U.S.C. § 406(b). Dkt. 23. Duncan
seeks 25 percent of Hansen's past-due benefits award,
pursuant to the contingency fee agreement between Duncan and
Hansen. Dkt. 23-1, at 1. The Commissioner does not oppose the
motion, Dkt. 26, but the court will deny the requested fees
and award Duncan a lesser amount.
court has repeatedly warned Duncan that under 42 U.S.C.
§ 406(b), the court will award fees only for the
attorney's work before this court.
See Westlund v. Colvin, No. 15-cv-450 (W.D. Wis.
June 1, 2017); Heise v. Colvin, No. 14-cv-739 (W.D.
Wis. Dec. 15, 2016). And the court warned Duncan that he
would risk denial of future fee requests if he continued to
brief his § 406(b) motions as though the court could
consider both his work in the administrative portion of the
case and his firm's non-attorney work.
has it wrong yet again. First, he tells the court to consider
the reasonableness of the requested fee award in light of the
time he and his staff expended on remand. Dkt. 24, at 10
(“Accounting for all time administratively, the
effective rate is $206.69 per hour.”). Then he says
that the court alternatively could consider the
reasonableness of the fee award in light of the time that
everyone expended at all levels of review. Id. at 13
(“Another method of calculating fees is to consider all
fees and time, specifically time from both the Federal and
Administrative aspects of the award.”). Duncan
misrepresents this court's past practice: he states that
“[t]his method of calculation”-meaning his
suggestion that the court consider all fees and all
time-“was used in Stemper v. Astrue, ”
No. 04-cv-838, 2008 WL 2810589 (W.D. Wis. July 14, 2008).
Dkt. 24, at 13. But the court did no such thing in
Stemper. Rather, the court explicitly recognized
that it could not “consider the hours that Duncan spent
in the administrative proceedings in determining the
reasonableness of the award.” Stemper, 2008 WL
2810589, at *1.
in his motion does Duncan simply lay out what the court needs
most: the equivalent hourly rate for his work before this
court, which would be $802 per hour ($13, 074.25 for 16.3
hours of attorney time). See Dkt. 23-4. Such an
equivalent hourly rate is not per se unreasonable. 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 v.
Astrue, 482 F.Supp.2d 1078, 1083 (E.D. Wis. 2007)
(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 v. Barnhart, 400 F.Supp.2d
1093, 1099-100 (N.D. Ill. 2005) (awarding a fee at a reduced
hourly rate of $350).
equivalent hourly rate of $802 is on the high end of rates
that courts have awarded, so it warrants careful review for
reasonableness. Duncan spends a significant part of his brief
trying to show that he is a highly qualified disability
rights attorney, and that his non-contingent hourly rate is
$400. Duncan is certainly very experienced, and despite
sloppy work in this court, some would consider him well
qualified. But his contention that his ordinary,
non-contingent hourly rate is $400 is very weakly
supported. Actually, based on Duncan's statements
about his expert work in divorce proceedings-the only actual
non-contingent rate he cites-his non-contingent rate is
actually $250 per hour. Dkt. 24, at 12. Duncan makes almost
no effort to show that something about Hansen's case
warrants compensation at a high equivalent hourly rate.
court's review of Duncan's work and his own billing
entries in this case does not allay the court's concerns.
Duncan reported 1.2 hours drafting Part A of the argument
section of the brief. But that part is a one-paragraph
statement of the standard of review, which Duncan must have
included in dozens of cases, so it should not have taken even
close to an hour. Duncan says he spent 4.0 hours drafting
Part B of the argument section, followed by 4.9 hours of
rewriting that section and further editing of the brief.
Although the court would not ordinarily quibble with spending
8.9 hours working on the argument section of the brief, the
brief raised only a single issue regarding the ALJ's
failure to properly evaluate the effect of Hansen's drug
and alcohol issues on his underlying disability. This, too,
is an issue that Duncan must have addressed many times
before. In several spots where Hansen's name should be,
the placeholder “&” remains. See,
e.g., Dkt. 14, at 17 (“There is no medical
evidence that the condition impacted &'s chronic pain
or fibromyalgia.”). The use of the “&”
placeholder suggests that significant parts of the argument
section were indeed cut-and-pasted from previous work by
Duncan. And the fact that the “&”
placeholders remain in the brief as filed raise doubts that
the brief got any significant editing after it was drafted.
The bottom line is that Duncan's work on this case in
this court appears to be quite routine, and it does not
warrant the extraordinary contingency premium that Duncan
seeks. The representative fee requested by Duncan is
has resolutely ignored the court's instructions by
repeatedly justifying representative fee awards under §
406(b) on the basis of work by non-attorneys and work in
tribunals other than this court. Duncan has made no
non-frivolous argument in support of his requested fees, and
his prolix motion is a waste of court resources. The court
will nevertheless award Duncan $4, 075, which is $250 per
hour for the 16.3 hours he spent on the case in this court.
This is more than Duncan would have received under the EAJA,
so it reflects a small contingency premium. Should Duncan
take this approach again in seeking fees under § 406(b),
he can expect a similar result.
ORDERED that plaintiff Chad Hansen's attorney's
unopposed motion for attorney fees pursuant to 42 U.S.C.
§ 406(b), Dkt. 23, is DENIED, and he is awarded fees in
the amount of $4, 075.
 I note, for example, that he states
that “[a]s part of the EAJA motion and award in this
case, affidavits of Fred Daly and Barry Schultz were
submitted. Mr. Daly indicated that his non-contingent hourly
rate was $500 per hour.” Dkt. 24, at 11. But there was
no EAJA motion in ...