Brooks v. Colvin

Filing 35

ORDER signed by Chief Judge Pamela Pepper on 5/20/2022. 34 Plaintiff's amended motion for attorney fees under 42 USC §406(b) GRANTED; the court approves award of $55,697 payable to plaintiff's attorney by defendant. Upon receipt, plaintiff's attorney to refund to plaintiff $9,500 previously awarded under EAJA. (cc: all counsel)(cb)

(5 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TRINA C. BROOKS,
Plaintiff,
Case No. 16-cv-1514-pp
v.
KILOLO KIJAKAZI,
Defendant.

ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR ATTORNEY
FEES (DKT. NO. 34)

On February 14, 2020, the court reversed and remanded the decision of
the Commissioner under Sentence Four of 42 U.S.C. §405(g). Dkt. No. 28. The
court granted the parties’ stipulated motion for attorney fees under the Equal
Access to Justice Act (EAJA) and ordered the defendant to pay $9,500 in
attorney fees in full satisfaction and settlement of any and all claims that the
plaintiff may have under the EAJA. Dkt. No. 31. On June 18, 2021, after
receiving a partially favorable decision awarding benefits from November 19,
2009 through June 6, 2018, the plaintiff filed a motion for attorney’s fees
under 42 U.S.C. §406(b)(1). Dkt. No. 32. The Commissioner’s Office of Central
Operations calculated the benefits for the primary beneficiary and awarded the
plaintiff $150,143 in past due benefits. Dkt. No. 34-1 at 1. Subsequently, the
Commissioner’s Office calculated the benefits for auxiliary beneficiaries and

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awarded the plaintiff an additional $72,645, including $63,376 for auxiliary
beneficiary D.W.L. and $9,269 for auxiliary beneficiary K.W.L. Id.
The Commissioner has clarified her position on any offset or risk
analysis, but did not oppose counsel’s initial request for a fee of $37,535.75.
Dkt. No. 33 at 2. The plaintiff since has filed an unopposed motion to amend
the petition and revise the requested amount to $55,697. Dkt. No. 34. The
court will grant the motion.
I.

Legal Standard
An attorney who succeeds in obtaining benefits for a Social Security

claimant may recover fees under 42 U.S.C. §406. “‘Section 406(a) governs fees
for representation in administrative proceedings before the Social Security
Administration; §406(b) controls fees for representation in federal court.’”
Kopulos v. Barnhart, 318 F. Supp. 2d 657, 660 (N.D. Ill. 2004) (citing
Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)). The statute provides for a
reasonable fee not to exceed 25% of the past-due benefits awarded to the
claimant. Id. at 661. The fees are deducted from the claimant’s benefits and do
not constitute an award against the government. Id.
A motion for fees under §406(b) requires court approval. Congress did
not intend the court’s review to override the claimant and counsel’s fee
arrangement but rather to act as an “independent check” to ensure the
arrangement yielded a reasonable result. Gisbrecht, 535 U.S. at 807. Within
the 25% boundary, the attorney for the successful claimant must show that
the fee sought is reasonable for the services rendered. Id. In making its
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determination, the court may consider the character of the representation and
the results obtained, reducing the award if the attorney is responsible for delay
in the proceedings that had the effect of inflating past-due benefits or if the fee
is so large in comparison to the amount of time the counsel spent on the case
that the fee would constitute a windfall for the attorney. Id. at 808.
II.

Analysis
The plaintiff signed a contract with her attorney on November 3, 2016,

stating that she understood that her attorney could keep 25% of the past-due
benefits (if awarded by the court) or the EAJA fee, whichever was higher. Dkt.
No. 32-2.
The defendant will not stipulate to the fees because the award is paid out
of past due benefits rather than agency funds. Dkt. No. 33 at 1, 2. Although
the defendant does not oppose the award itself, the defendant clarifies that the
agency has no obligation to withhold benefits to pay a §406(a) administrative
fee if the attorney fails to make a timely request as described in 20 C.F.R.
§404.1730(c)(1) and (c)(2). The defendant also takes issue with the plaintiff’s
analysis about outcomes on remand, believing it overstates the risk of taking
cases to federal court. Dkt. No. 33 at 2. The court has considered both
arguments, as well as the fact that the defendant does not oppose the award.
The §406(b) fee requested appears reasonable. The plaintiff’s attorney
obtained a good result for the plaintiff with an award of benefits through 2018.
The plaintiff agreed to pay up to 25% of the past-due benefits awarded to her
and the fee appears reasonable when considered in light of other awards in this
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circuit. See Bernarducci v. Saul, No. 1:18-CV-38-TLS-JPK, 2021 WL 2376395,
*2 (N.D. Ind. June 10, 2021) (approving effective hourly rate of $734); Heise v.
Colvin, No. 14-cv-739-jdp, 2016 WL 7266741, *2 (W.D. Wis. Dec. 15, 2016)
(approving effective hourly rate of $1,100). While the defendant makes an
excellent point regarding the need to update the statistics and case law
regarding the risks of taking a case on a contingent bases, there always will be
a risk that counsel would collect nothing.
The plaintiff’s attorney initially asked the court to order a net payment
reflecting an offset for the EAJA award of $9,500 in lieu of having to refund the
fee. Dkt. No. 32. Where the plaintiff’s attorney receives fees under the EAJA
and §406(b), the attorney must refund to the plaintiff the smaller fee.
Gisbrecht, U.S. 535 at 796. An offset requires the defendant to withhold the
balance of the 25% award while the plaintiff’s attorney pursues an award of
administrative fees under §406(a). In the amended motion, however, the
plaintiff’s attorney asks the court to grant the fee request in its entirety and
says that he will refund the EAJA fee of $9,500 to the plaintiff (and forego
petitioning for the administrative fee). That procedure seems the most
appropriate to the court.
III.

Conclusion
The court GRANTS the plaintiff’s unopposed amended motion for

attorney’s fees under 42 U.S.C. §406(b) and approves an award of $55,697
payable to the plaintiff’s attorney by the defendant. Dkt. No. 34. Upon receipt

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of the award, the plaintiff’s attorney must refund to the plaintiff the $9,500 fee
previously awarded under the Equal Access to Justice Act.
Dated in Milwaukee, Wisconsin this 20th day of May, 2022.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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