Pape, Mark v. Colvin, Carolyn

Filing 38

ORDER granting 34 Unopposed Motion for Attorney Fees pursuant to § 206(b)(1). Plaintiff awarded attorney fees in the amount of $4,685.50. Signed by District Judge James D. Peterson on 11/17/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MARK STEVEN PAPE,
Plaintiff,
v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

13-cv-236-jdp

Defendant.
Plaintiff Mark Steven Pape brought this case to appeal the Commissioner’s decision
denying his application for disability benefits. The court reversed the Commissioner’s
decision and remanded the case for further proceedings. Dkt. 23. The court also awarded fees
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, which required the
government to pay $7,821 for attorney fees and $418.93 for costs (for a total of $8,239.93).
Dkt. 33.
On remand, the Commissioner found Pape disabled and awarded substantial past-due
benefits. Dkt. 35, at 1. Pursuant to Pape’s contingency fee arrangement with his counsel, the
Social Security Administration withheld 25 percent of his past-due benefits—$25,006.50—
for attorney fees. Dkt. 35, at 3. The administrative law judge approved fees for the attorney
who represented Pape in the proceedings before the Social Security Administration, Robert
Angermeier, in the amount of $12,500. Dkt. 7, at 193 and Dkt. 35, at 3.
Pape’s attorney in this court, David Traver, now seeks his portion of the contingency
fee under 42 U.S.C. § 406(b), which he contends would be $4,685.50. Dkt. 34. The
Commissioner indicates that she does not oppose the award. Dkt. 37. The court will grant
the motion.

Travers had a written fee agreement with Pape that would pay Travers a contingency
fee of 25 percent of Pape’s past-due benefits. Dkt. 25-3. Attorney fees in Social Security cases
are governed by 42 U.S.C. § 406. Section 406(a) governs fees for work at the administration
level; § 406(b) governs work in federal court. Under § 406, “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). The fees awarded
under § 406(a) and § 406(b) together cannot exceed 25 percent of the past due benefits. Id.
at 795-96. The fee requested by Travers is within this limit.
Traver’s fee must not only be within the 25 percent cap, but it must also be
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 979,
983).
Here, attorney Traver represents that his team spent 43.3 hours litigating Pape’s case
before the court. Dkt. 25-2, at 1. The award is equivalent to an attorney compensation rate

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of approximately $288.83 per hour (total attorney fees of $12,506.50, which is $7,821 under
the EAJA plus $4,685.50 under § 406(b), for 43.3 hours of work). Courts have approved
much higher fees, such as $446, $625, $636, and $1500. Koester, 482 F. Supp. 2d at 1083
(collecting cases). Traver is an experienced disability rights attorney, and he obtained very
favorable results for Pape: the court remanded the case, which ultimately led to the
Commissioner’s decision that Pape is disabled.
Travers is entitled to 25 percent of Pape’s past-due benefits, $25,006.50, less the
$12,500 that the ALJ has approved for attorney Angermeier, and less the $7,821 attorney
fees already awarded under the EAJA. Dkt. 35, at 3. Thus, Travers is entitled to $4,685.50
from the amount withheld by the agency.

ORDER
IT IS ORDERED that plaintiff’s attorney’s unopposed petition for attorney fee
pursuant to § 206(b)(1), Dkt. 34, is GRANTED. The court approves the representative fee
award of $4,685.50 to Traver. After Traver and Angermeier are paid, the remaining amount
should be paid directly to plaintiff.
Entered November 17, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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