United States District Court, W.D. Wisconsin
BARBARA B. CRABB District Judge.
Becki Beach filed this lawsuit in 2014, seeking review of an
administrative decision that denied her request for
disability benefits under the Social Security Act. After
plaintiff filed a motion for summary judgment, the parties
agreed to a remand so that the administrative law judge could
reevaulate plaintiff's psychological limitations, among
other things. After I granted the motion to remand, the
parties stipulated to an award under the Equal Access to
Justice Act of $5, 400 in attorney fees for the proceedings
up until that time. Dkt. ##22 and 23. Now plaintiff's
attorney, Dana Duncan, seeks an award of attorney fees
pursuant to 42 U.S.C. § 406(b), which allows the court
to award a prevailing plaintiff's attorney a reasonable
fee, but no greater than 25 percent of past-due benefits.
Gisbrecht v. Barnhart, 535 U.S. 789, 792 (2002).
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 [contingency-fee] contract so long as the
court has reviewed its reasonableness.”).
not immediately clear whether Duncan is seeking an award of
$10, 825.35 or $16, 225.35. His motion states that he is
asking for $10, 825.35, but he arrives at that number by
subtracting $5, 400 (his award under EAJA) from $16, 225.35,
which he says is 25 percent of the past benefits awarded to
plaintiff. Dkt. #25 at 2 (“Counsel seeks an award of
$10, 825.35 ($16, 225.35 - $5, 400.00 = $1,
25.35.”). It may be that Duncan is subtracting his
EAJA award because of 28 U.S.C. § 2412, which prohibits
him from keeping both awards. (There may be another reason as
well, which I will discuss at the end of the opinion.)
However, Duncan has already received the $5, 400 and the
reasonableness of an award under § 406(b) is determined
without reference to the EAJA, so it makes little sense to
include the fee awarded under EAJA in a calculations for an
award under § 406(b). In future fee petitions under
§ 406(b), Duncan should not include a previous EAJA
award in his calculations. In any event, Duncan's fee
agreement with plaintiff states that he is entitled to 25
percent of the award for past benefits, dkt. #25-1, and $16,
225.35 is 25 percent of $64, 901.40, the amount that Duncan
calculates as the past benefits awarded, so I understand
Duncan's position to be that he is entitled to an
additional $10, 825.35 for a total of $16, 225.35.
evaluating a request for fees under § 406(b) for
reasonableness, a court may consider “the character of
the representation and the results the representative
achieved.” Gisbrecht, 535 U.S. at 808. The
Court provided two instances in which it would be appropriate
to reduce an award. First, “[i]f the attorney is
responsible for delay, . . . a reduction is in order so that
the attorney will not profit from the accumulation of
benefits during the pendency of the case in court.”
Id. Second, if the benefits are large in comparison
to the amount of time counsel spent on the case, a downward
adjustment is similarly in order.” Id. Other
courts in this circuit have considered factors such as the
attorney's experience, reputation and ability as well as
awards in similar cases. Westlund v. Berryhill, No.
15-cv-450-jdp, 2017 WL 2389724, at *1 (W.D. Wis. June 1,
2017) (citing Hodges-Williams v. Barnhart, 400
F.Supp.2d 1093, 1099 (N.D. Ill. 2005), and McGuire,
873 F.2d at 979, 983).
arguing that his requested fee is reasonable in this case,
Duncan gets off on the wrong foot by including time spent in
the administrative proceedings. It is clear from the text of
the statute that § 406(b) applies only to attorney fees
related to court proceedings, a conclusion confirmed
by multiple courts in this district, including this court.
E.g., Heise v. Colvin, No. 14-cv-739-jdp,
2016 WL 7266741, at *2 (W.D. Wis. Dec. 15, 2016) (Peterson,
J.) (“[U]nder § 406 each tribunal may award fees
only for the work done before it[, ] . . . [s]o I will limit
my reasonableness evaluation to Duncan's work before this
court, and he can pursue the rest of his contingency fee from
the Commissioner.”) (citations and internal quotations
omitted); Stemper v. Astrue, No. 04-cv-838-jcs, 2008
WL 2810589, at *1 (W.D. Wis. July 14, 2008) (Crabb, J.)
(“§ 406(b) governs fees for representation in
court and not in the administrative proceedings.”). It
is unclear why, nine years after this court held otherwise,
Duncan continues to try to use § 406(b) to obtain fees
for time spent in administrative proceedings.
even if time spent in administrative proceedings is
disregarded, Duncan's records show that he spent 20.25
hours on matters related to court proceedings, including the
preparation of a motion for summary judgment, and his
paralegal spent another 19.65 hours on those matters. Dkt.
#25-4. Although it appears to be an open question in this
circuit whether paralegal time may be considered in assessing
the reasonableness of a fee request under § 406(b), I
see no reason to exclude it. Richlin Secretary Service
Co. v. Chertoff, 553 U.S. 571, 581 (2008) (reasonable
attorney fees under Equal Access to Justice Act includes
paralegal time); Missouri v. Jenkins, 491 U.S. 274,
285 (1989) (reasonable attorney fees under 42 U.S.C. §
1988 includes paralegal time). Awarding Duncan $16, 225 for
this combined time would be the equivalent a rate of
approximately $600 an hour for Duncan and $200 an hour for
his paralegal. In light of Duncan's experience, the risk
he incurred and the amounts awarded by other courts in
similar cases in both this court, e.g.,
Stemper, 2008 WL 2810589, at *2 (approving effective
rate of $666), and the courts cited in Duncan's brief, I
conclude that the amount is reasonable.
wrinkle remains. When awarding benefits to plaintiff, the
Social Security Administration stated that it was withholding
25 percent of the benefits for a potential award of attorney
fees, as it usually does. However, for reasons it did not
explain, it withheld only $10, 846.50, which is significantly
less than 25 percent of the benefits that Duncan calculated.
Although the administration's award letter does not
include a sum of past benefits, it includes the monthly
amount to which plaintiff is entitled since she became
eligible for benefits. From these amounts, Duncan's
calculation of the sum does not appear inflated and the
commissioner does not point to any errors in his calculation.
means that the administration does not have the full $16, 225
to which I have concluded that Duncan is entitled. However,
because Duncan already has received $5, 400 in fees under
EAJA and he cannot keep both awards, 28 U.S.C. § 2412,
it makes sense simply to reduce Duncan's award by $5, 400
and relieve him of the duty to refund that amount. This may
be why Duncan subtracted $5, 400 from his petition in the
first place. If $5, 400 is subtracted from $16, 225.35, this
leaves $10, 825.35, which is less than the amount withheld by
ORDERED that attorney Dana Duncan's motion for attorney
fees, dkt. #25, is GRANTED. Duncan is AWARDED $10, 825.35 in
fees under 42 U.S.C. § 406(b). Because that amount
excludes the $5, 400 that Duncan received under the Equal
Access to Justice Act, Duncan need not return his EAJA award.
The remaining amount withheld by the Social Security
Administration should be paid to plaintiff Becki Beach.
Entered this 1st day of August, 2017.
 I have amended the caption to reflect
the current acting commissioner of the Social Security
Administration, in accordance ...