United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
Richard McNaught filed this lawsuit in 2015, seeking review
of an administrative decision denying his request for
disability benefits under the Social Security Act. After
plaintiff filed a motion for summary judgment, the parties
agreed to a remand for further proceedings before the
administrative law judge. After I granted the motion to
remand, the parties stipulated to an award under the Equal
Access to Justice Act of $4, 400.00 in attorney fees for
plaintiff's attorney, Dana Duncan, for the proceedings up
until that time. Dkt. ##13 and 18. On remand, an
administrative law judge concluded that plaintiff was
disabled and entitled to past-due benefits of $72, 845.00.
Duncan seeks an award of attorney fees under 42 U.S.C. §
406(b) and the contingency agreement signed by plaintiff.
Dkt. #21. Duncan says that he is entitled to $18, 211.25,
which is 25 percent of plaintiff's past-due benefits
award of $72, 845.00. However, because he has already
received $4, 400 under the Equal Access to Justice Act,
Duncan requests that he be paid $13, 211.25 out of
plaintiff's past-due benefits and that the remaining $4,
400.00 withheld by the Commissioner be released to plaintiff.
The commissioner does not oppose Duncan's request. For
the reasons below, I am awarding Duncan $11, 730 in total
attorney fees, meaning that he may retain the $4, 400 EAJA
award and may receive $7, 330 in fees from plaintiff's
past due benefits. The remaining portion of the statutory fee
withheld by the Commissioner ($10, 881.25) shall be released
42 U.S.C. § 406(b), the court may 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.”). When 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. In Gisbrecht,
the Court identified two instances in which a fee reduction
would be appropriate. 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. 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)).
initial matter, I note that Duncan includes time spent in the
administrative proceedings in his fee requests. As has been
explained to him repeatedly, § 406(b) applies only to
attorney fees related to court proceedings. E.g,
Beach v. Berryhill, No. 14-cv-857-bbc, 2017 WL
3275546, *2 (W.D. Wis. Aug. 1, 2017) (“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.”); 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.”). Accordingly, I am
disregarding Duncan's records and arguments relating to
time spent at the administrative level.
records show that he spent 16.60 hours on matters related to
court proceedings, including the preparation of a motion for
summary judgment, and his paralegal spent another 17.15 hours
on those matters. Dkt. #21-4. 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 include
paralegal time). Awarding Duncan $18, 211.25 for this
combined time would be the equivalent of a rate of
approximately $850 an hour for Duncan and $250 an hour for
his paralegal. This fee is on the high end of rates that
courts have awarded, Koester v. Astrue, 482
F.Supp.2d 1078, 1081 (E.D. Wis. 2007), so it warrants careful
review for reasonableness.
makes almost no effort to show that something about this case
warrants compensation at a high equivalent hourly rate. He
argues that his contingency fee is actually equivalent to a
much lower hourly compensation, either $364.42 or $254.17,
but his calculations include the time he spent at the
administrative level and are not helpful. A review of
Duncan's work in this case shows that the work was
routine and does not warrant the high contingency premium
Duncan seeks. Because the representative fee is unreasonable,
I will reduce it to an appropriate rate.
setting a reasonable fee, I consider Duncan's experience,
the risk he incurred in taking a case on a contingency basis
and the efficient resolution he achieved after filing a
motion for summary judgment. On the other hand, I consider
Duncan's actions in ignoring repeatedly the court's
instructions and wasting the court's resources by
attempting to justify representative fee awards under §
406(b) on the basis of work in tribunals other than this
court. I conclude that a reduced fee equivalent to $500 and
hour for Duncan's 16.60 hours of work ($8, 300), and $200
an hour for the 17.15 hours of paralegal work ($3, 430), is
reasonable. Accordingly, I will award Duncan a total fee of
$11, 730. This means Duncan may receive $7, 330 from the
award withheld by the Commissioner and may retain the
previous award of $4, 400 in fees under the Equal Access to
ORDERED that Dana Duncan's motion for attorney fees, dkt.
#21, is GRANTED IN PART AND DENIED IN PART. Duncan is awarded
$7, 330 in fees under 42 U.S.C.§ 406(b) to be paid out
of plaintiff Richard McNaught's past due benefits. The