United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
William Ferg filed this lawsuit in 2015, seeking review of an
administrative decision that denied his request for
disability benefits under the Social Security Act. After Ferg
filed a motion for summary judgment, the court granted the
parties' joint motion for a remand and directed the
Commissioner to further consider Ferg's residual
functional capacity and obtain supplemental vocation expert
testimony if needed. Dkt. 12. The court also awarded attorney
fees in the amount of $5, 100 under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. Dkt. 45.
remand, Ferg obtained a favorable decision and an award of
benefits from the Commissioner. As a result, Ferg's
counsel, Dana Duncan, seeks a representative fee award
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.”). Duncan has an
agreement with Ferg that allows Duncan to keep 25 percent of
the past-due benefits.
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. This
court has 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,
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,
opening brief, Duncan represents that 25 percent of the
benefits awarded is $25, 367.25 and that he is seeking $10,
000 from the agency for administrative time, leaving a fee
request in this court of $15, 367.25. He asks the court to
award $10, 267.25 to him and to direct the agency to give the
remaining $5, 100 to Ferg to account for the $5, 100 Duncan
already received in accordance with § 406(b).
Gisbrecht, 535 U.S. at 796 (“Fee awards may be
made under [EAJA and § 406(b)], but the claimant's
attorney must refund to the claimant the amount of the
smaller fee.”) (internal quotations and alterations
Commissioner doesn't object to Duncan's request, with
two exceptions: (1) Duncan overstated the amount that
represents 25% of the award by $756.25; and (2) because the
agency mistakenly failed to withhold more than $8, 000 from
Ferg for attorney fees, the court should not direct the
agency to pay $5, 100 to Ferg.
reply brief, Duncan acknowledges that he erred in calculating
Ferg's benefits and that 25 percent of past-due benefits
is actually $24, 611, resulting in a fee request of $14, 611
after subtracting Duncan's $10, 000 fee petition before
the agency. Duncan also maintains his request that the agency
pay $5, 100 to Ferg, but he doesn't respond to the
Commissioner's observation that Ferg already received
significantly more than that because the agency mistakenly
failed to withhold attorney fees from the award of benefits.
For the reasons explained below, the court will grant
Duncan's request for fees, but will not direct the agency
to pay an additional $5, 100 to Ferg.
represents that his team spent 40.95 hours litigating
Ferg's case before this court (18.8 hours in attorney
time and 22.15 hours in paralegal and administrative time).
Excluding the paralegal time, Duncan's requested award
represents an equivalent hourly rate of $777.18. But it is
appropriate in assessing a reasonable fee to consider
paralegal time as well. Richlin Sec'y Serv. 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). If Duncan's paralegal time is
included at the rate he suggests ($125 an hour), the
equivalent rate for attorney time is $629.94.
equivalent rate Duncan requests is high, but similar to rates
approved by this court in other cases. E.g., Palmer v.
Berryhill, No. 16-cv-681, 2018 WL 2248422, at *1 (W.D.
Wis. May 16, 2018) (approving effective rate of $614 an
hour); Stemper v. Astrue, No. 04-cv-838, 2008 WL
2810589, at *1 (W.D. Wis. July 14, 2008) (approving effective
rate of $666 an hour). In light of Duncan's experience,
the result he obtained, the risk he incurred, and the amounts
awarded in similar cases, I conclude that the requested fee
the court already awarded $5, 100 to Duncan under EAJA,
Duncan asks the court to subtract that amount from his award,
leaving $9, 511. He asks the court to direct the agency to
give the $5, 100 to Ferg instead, but he doesn't explain
why. He doesn't dispute the Commissioner's
representation that the agency already gave Ferg more than
$8, 000 that should have been reserved for attorney fees, so
directing the agency to give $5, 100 to Ferg would give him a
windfall. Because Duncan cites no authority that would
require that result, the court will not direct the agency to
pay Ferg an additional amount.
ORDERED that Dana Duncan's motion for attorney fees under
42 U.S.C. § 406(b), Dkt. 17, is GRANTED. The court
approves the representative fee of $9, 511.