United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE.
another in a series of recent cases in which attorney Dana
Duncan requests that the court approve a contingency fee on
the basis of past benefits awarded to his client.
Duncan's request suffers from problems that he has still
failed to correct, despite previous warnings from this court.
briefed a motion for summary judgment. Dkt. 10. Then the
parties stipulated to a remand, Dkt. 11, and on that basis,
the court reversed the Commissioner's decision denying
plaintiff Phillip Taylor's applications for disability
insurance benefits and supplemental security income and
remanded the case for further proceedings. Dkt. 12. The court
awarded Duncan $5, 800 in fees under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. Dkt. 15. On
remand, the Commissioner awarded Taylor $42, 396 in past-due
disability insurance benefits and $50, 445.73 in past-due
supplemental security income. Dkt. 17-2 and Dkt. 17-3.
Duncan moves the court for a representative fee award of $23,
210.43, pursuant to 42 U.S.C. § 406(b). Dkt. 17. Duncan
seeks 25 percent of Taylor's past-due benefits awards,
pursuant to the fee agreement between Duncan and Taylor. Dkt.
17-1 (“If I receive both social security disability and
SSI benefits, I understand that my total fee will not be more
than 25% of all past-due benefits[.]”). The
Commissioner does not oppose the motion, Dkt. 20, but the
court will deny the requested fees and award Duncan a lesser
order comes on the heels of other § 406(b) fees orders
that the court has issued in Duncan's cases. See,
e.g., Hansen v. Berryhill, No. 14-cv-245 (W.D.
Wis. Aug. 1, 2017). In that order, as in others, the court
noted that it has warned Duncan that under § 406(b), the
court will award fees only for the attorney's
work before this court. Id. Obviously
Duncan did not have the benefit of the Hansen order
when he moved for fees here. But he had the benefit of older
orders that relayed the same message. 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). Yet Duncan got it wrong again. He continues to use the
same brief each time he asks for § 406(b) fees,
and each time the court points out the brief's failings.
Those criticisms apply with equal force here, so the court
will just quote from the Hansen order:
Duncan 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.
Nowhere in his motion does Duncan simply lay out what the
court needs most: the equivalent hourly rate for his work
before this court[.]
the Commissioner did not object to Duncan's fee request,
Duncan took the opportunity to file a reply brief to attempt
to address the court's previously voiced concerns. Dkt.
21. But Duncan's reply does not help his case.
has provided no good reason to award him fees that would be
the equivalent of $882 per hour. His only substantive
submission to this court was the 39-page summary judgment
brief. Like many of Duncan's briefs in this court, this
one consists of a lot of cut-and-paste from the ALJ's
decision and long boiler-plate descriptions of precedent.
It's short on analysis of the two primary issues, which
are actually quite routine. Although Duncan was successful in
prompting a stipulated remand, this is not high-quality legal
work that should be compensated at such an elevated rate. And
the fact that he received a previous award under the EAJA
only means that the government will pay part of his fees; it
does not mean, as he suggests, that his equivalent hourly
rate is actually lower.
court will do what it did in Hansen. There, the
court docked Duncan's requested fee award because it was
unreasonably high in light of the time he expended litigating
the case in this court; the court awarded Duncan fees as a
rate of $250 per hour. The court will again award Duncan fees
at a rate of $250 per hour, or $6, 575. He must return the
previously awarded EAJA fees to his client.
here on out, the court will continue to award Duncan fees at
a rate of $250 per hour until he (1) identifies and applies
the correct standard for evaluating reasonableness of
contingency fee requests, and (2) explains why a larger fee
award does not amount to an unreasonable windfall.
ORDERED that plaintiff Phillip Taylor's attorney's
unopposed motion for attorney fees pursuant to 42 U.S.C.
§ 406(b), Dkt. 17, is DENIED, ...