United States District Court, W.D. Wisconsin
CLIFTON R. EVANS, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
for plaintiff Clifton Evans has filed a second unopposed
request for an award of attorney fees under 42 U.S.C. §
406(b). The court granted counsel's first request and
awarded $28, 785 in attorney fees after the administrative
law judge awarded Evans and his son a total of $115, 140 in
benefits for the period between June 2009 and July 2012. Dkt.
32. Since that decision, the administrative law judge
conducted additional proceedings and awarded Evans and his
son an additional $159, 216 in benefits for the period
beginning October 2012. Dkt. 34, ¶ 4. In accordance with
counsel's contingency fee agreement and Gisbrecht v.
Barnhart, 535 U.S. 789, 792 (2002), counsel requests an
award equal to 25% of the new award of benefits, or $39, 804.
request gives the court pause because an award under §
406(b) is limited to counsel's work in the district
court, Heise v. Colvin, No. 14-cv-739, 2016 WL
7266741, at *2 (W.D. Wis. Dec. 15, 2016), but counsel has not
performed any additional work in this court since his
previous fee petition. Although counsel does not acknowledge
this issue or cite other instances in which courts granted
this type of supplemental petition, the court sees no reason
to deny counsel's request simply because he has already
received an award. The relevant question is whether the total
award is justified in the first instance. In other words, if
counsel had obtained the same results before filing his first
fee petition, would a fee award of $68, 589 ($28, 785 $39,
804) be reasonable? Gisbrecht, 535 U.S. at 807
(“[Section] 406(b) calls for court review of
[contingency-fee] arrangements as an independent check, to
assure that they yield reasonable results in particular
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.” Id. at 808. The Supreme Court
discussed 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
relevant factors include the attorney's experience,
reputation, and ability as well as awards in similar cases.
Westlund v. Berryhill, No. 15-cv-450, 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 v. Sullivan, 873
F.2d 974, 983 (7th Cir. 1989)).
case, counsel's team logged 47.89 hours of work in this
court, which translates to an hourly rate of more than $1,
400 if counsel's request is granted in full. That is
significantly higher than other recent awards in this
court. In fact, counsel does not identify any
other cases in which this court approved such a large fee for
a comparable amount of work. Recently, in Weitz v.
Berryhill, No. 16-cv-419, 2017 WL 5186472, at *1 (W.D.
Wis. Nov. 8, 2017), this court observed that “[t]he
equivalent hourly rate of $858.91 is on the high end of rates
that courts have awarded, so it warrants careful review for
reasonableness.” Because counsel's request
represents a significant increase even over the request in
Weitz, counsel has a heavy burden of showing that
extraordinary circumstances justify his fee request.
such circumstance could be unusually difficult or contentious
proceedings in this court. But counsel does not contend that
this case presented any special challenges and the
court's own review of the record does not reveal any.
Counsel instead provides several other reasons that he
believes a higher fee is justified in this case: (1) courts
in other districts have approved similar hourly rates in
other cases; (2) Evans will receive more than $450, 000 in
future benefits; and (3) in light of Evans' long-term
disability insurance, Evans will not have to pay any of
counsel's fee out of his own pocket.
awards from other courts have limited probative value.
Counsel does not discuss the circumstances in those cases or
otherwise explain why he believes this case is comparable.
the future benefits that Evans will receive, counsel does not
cite any authority or otherwise show why future benefits are
an appropriate consideration in determining a reasonable fee.
One might argue that they aren't in light of the
statutory bar on using future benefits to calculate the 25%
limit on fees. Gisbrecht, 535 U.S. at 795 (“Because
benefits amounts figuring in the fee calculation are limited
to those past due, attorneys may not gain additional fees
based on a claimant's continuing entitlement to
benefits.”). See also Crawford v. Astrue, 586
F.3d 1142, 1157 (9th Cir. 2009) (Bea, J., dissenting)
(“[F]uture benefits are never available under §
406(b) and cannot contribute to assessing whether a
particular fee request under § 406(b) is
reasonable.”). But it appears that some courts do take
future benefits into consideration on the ground that future
benefits may help demonstrate that counsel obtained excellent
results for the client. E.g., Santino v. Astrue, No.
06-cv-75, 2009 WL 1076143, at *4 (N.D. Ind. Apr. 20, 2009)
(“Although these continuing and future benefits do not
factor into the basis for calculating the amount of the
§ 406(b)(1) attorney's fees, they nevertheless
demonstrate the value of counsel's work to
Plaintiff.”). The court agrees with Santino that future
benefits can be a relevant consideration, so it provides some
justification for a higher rate.
to his last contention, counsel says that a higher award is
justified because the client will not pay it personally.
Although one purpose of § 406(b) is “to protect
claimants against inordinately large fees, ” Gisbrecht,
535 U.S. at 805 (emphasis added and internal quotations
omitted), and not to protect insurance companies, the
ultimate question is about the reasonableness of the fee
itself, which is independent of the party paying the fee. In
the absence of authority showing that it is appropriate to
consider this factor, the court will not rely on it. The
court will not give an attorney a windfall just because an
insurance company will pay the fee.
counsel has shown that he is entitled to some additional
compensation in light of the results he obtained for his
client, but the court is not persuaded that he is entitled to
more than double the amount the court has already approved.
The court will approve an additional $19, 105, which
represents an hourly rate equivalent of approximately $1, 000
an hour. The award properly reflects both the excellent
results obtained, and counsel's risk of loss in
undertaking contingent fee cases.
ORDERED that counsel for Clifton Evans' supplemental
petition for attorney fees pursuant to 42 U.S.C. §
406(b), Dkt. 34, is GRANTED IN PART. The court approves a
representative fee award of $ 19, 105.