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
Elisa Sorem's application for disability benefits and
supplemental security income. Dkt. 11. The court awarded
plaintiff's attorney, Dana Duncan, fees in the amount of
$4, 572.55 under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412. Dkt. 20.
remand, Sorem obtained a favorable decision and an award of
benefits from the commissioner. The commissioner reserved
$13, 978 of the award for attorney fees, which represents 25
percent of past-due benefits. Dkt. 22-2. And Duncan says the
agency granted his petition for $6, 000 in fees for his time
spent handling administrative proceedings.
now moves for a representative fee award of $3, 405.45
pursuant to 42 U.S.C. § 406(b). Dkt. 22. This represents
the $7, 978 that the commissioner continues to withhold,
offset by the previous award of $4, 572.55 in EAJA fees.
See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002)
(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). Plaintiff signed a contingent fee
contract and agreed to pay her attorney 25 percent of any
back benefits awarded, Dkt. 22-1, and the commissioner does
not oppose the award. Dkt. 27.
406(b) allows the court to award a prevailing plaintiff's
attorney a reasonable fee of no greater than 25 percent of
past-due benefits, Gisbrecht v. Barnhart, 535 U.S.
789, 792 (2002). But 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 its reasonableness.”).
When 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
court concludes that Duncan's request is reasonable.
Duncan filed and briefed a successful motion for summary
judgment. And Duncan ultimately obtained a favorable result
for Ms. Sorem. He represents that his team spent 36.25 hours
litigating before this court (12.10 hours in attorney time,
24.15 hours in paralegal time). Dkt. 22-3. For attorney time
alone, the contingency fee is equivalent to an hourly
compensation rate of approximately $659.34 per hour ($7, 978
for 12.10 hours of work). 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 $409.86 per hour.
equivalent rate Duncan requests is on the high side, but it
is within the 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). And 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).
light of Duncan's experience, the result he obtained, the
risk he incurred, and the amounts awarded in similar cases,
the court concludes that the requested fee is reasonable.
ORDERED that Dana Duncan's motion for $3, 405.45 in
attorney fees under 42 U.S.C. § 406(b), Dkt. 23, is
 Duncan erroneously states that the
commissioner withheld $13, 798, Dkt. 22, at 2 and Dkt. 23, at
2, but his math and the final award requested ...