United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE.
on the parties' joint motion, the court reversed and
remanded the Commissioner's decision denying plaintiff
Heather Palmer's application for disability benefits and
supplemental security income. Dkt. 13. The court awarded
plaintiff's attorney fees in the amount of $4, 667.25
under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412. Dkt. 16. On remand, the Administration awarded
plaintiff $62, 427 in past-due benefits.
plaintiff's attorney petitions the court for a
representative fee award of $15, 606.75, under 42 U.S.C.
§ 406(b). Plaintiff signed a contingent fee contract and
agreed to pay her attorney “an amount equal 25% of the
past-due benefits” awarded. Dkt. 19-1. The Commissioner
has indicated that she does not oppose the award. Dkt. 21.
§ 406(b), the court may award a claimant's attorney
a representative fee for his or her work before the court.
This section of the Social Security Act provides that
“a prevailing claimant's fees are payable only out
of the benefits recovered; in amount, such fees may not
exceed 25 percent of past-due benefits.” Gisbrecht
v. Barnhart, 535 U.S. 789, 792 (2002). Plaintiff's
attorney must demonstrate that within the 25 percent cap, the
requested fee is reasonable. Id. at 807, 809;
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 contract so long as the court has reviewed
evaluating a representative fee for reasonableness,
“the court may consider the character of the
representation and the results obtained, reducing an award if
. . . the fee is so large in comparison to the amount of time
counsel spent on the case such that the fee would constitute
a windfall to the attorney.” Koester v.
Astrue, 482 F.Supp.2d 1078, 1081 (E.D. Wis. 2007)
(citing Gisbrecht, 535 U.S. at 808). “In
determining what is a reasonable fee, the court should
consider: the time and labor required; the skill required;
whether the fee was contingent or fixed; the amount involved
and the result attained; the attorney's experience,
reputation, and ability; and awards in similar cases.”
Hodges-Williams v. Barnhart, 400 F.Supp.2d 1093,
1099 (N.D. Ill. 2005) (citing McGuire, 873 F.2d at
plaintiff's attorney represents that he spent 25.4 hours
litigating plaintiff's case before this court.
Plaintiff's attorney briefed a motion for summary
judgment and provided persuasive arguments in support of
remand. And plaintiff's attorney obtained favorable
results for Ms. Palmer.
court notes that the contingency fee here is equivalent to an
attorney compensation rate of approximately $614.44 per hour
($15, 606.75 for 25.4 hours of work). But the court will not
discount the fee just because it will compensate
plaintiff's attorney at a higher than usual hourly rate.
Contingent fee agreements often reflect larger hourly rates;
contingent fee agreements account for the attorney's risk
of non-recovery, and awarding the fee consistent with the
parties' agreement incentivizes attorneys to represent
social security claimants. “If courts regularly
invalidated reasonable contingency agreements in favor of a
lodestar fee, then attorneys would no longer enter into such
agreements.” McGuire, 873 F.2d at 980. For
these reasons, district courts across the country have
awarded representative fees that reflect varying hourly
rates, including $446, $625, $636, and $1, 500.
Koester, 482 F.Supp.2d at 1083 (collecting cases).
Because plaintiff's attorney obtained favorable results
for his client, and because the contingent fee agreement
supports the requested award, the court will grant the
unopposed petition for the requested attorney fee. See
Kopulos v. Barnhart, 318 F.Supp.2d 657, 669 (N.D. Ill.
2004) (awarding the requested representative fee because
“it is consistent with the Contract entered into
between Petitioner and Plaintiff, it is consistent with the
25% statutory cap for SSA fees, and the Commissioner has no
objection to the amount of the SSA award”).
final note. As plaintiff's attorney acknowledges, this
award requires plaintiff's attorney to return the
previously awarded $4, 667.25 EAJA fee award to plaintiff.
When an attorney receives fees for the same work under both
§ 406(b) and the EAJA, the attorney must return the
smaller fee to plaintiff; the EAJA fee award
“offsets” the § 406(b) award.
Gisbrecht, 535 U.S. at 796.
court's judgment awarding attorney fees under 28 U.S.C.
§ 2412, Dkt. 23, is VACATED.
Plaintiff's attorney's unopposed petition for
attorney fees under 42 U.S.C. § 406(b), Dkt. 18, is
GRANTED. The court approves the representative fee award of
$15, 606.75, ...