Nelson, Christopher v. Colvin, Carolyn

Filing 41

ORDER granting 39 Motion for Attorney Fees. Plaintiff Christopher Milton Nelson awarded attorney fees in the amount of $12,718.93. Signed by District Judge James D. Peterson on 3/23/2016. (jls)

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

CHRISTOPHER MILTON NELSON,
Plaintiff,
v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

13-cv-513-jdp

Defendant.
On September 17, 2014, the court reversed and remanded the Commissioner’s
decision denying plaintiff Christopher Milton Nelson’s application for disability benefits.
Dkt. 27. The court awarded plaintiff’s attorney fees in the amount of $6,800 under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412. Dkt. 34. On remand, after further
administrative proceedings, the Commissioner awarded plaintiff $75,829 in past-due DIB
benefits and $2,246.70 in past-due SSI benefits.
Now plaintiff’s attorney petitions the court for a representative fee award in the
amount of $12,718.93, pursuant to 42 U.S.C. § 406(b). Plaintiff signed a contingent fee
contract and agreed to allow his attorney to “keep 25% of the past-due benefits if awarded by
the court or the EAJA fee, whichever is the higher of the two.” Dkt. 37-1. The Commissioner
does not oppose the award.
Under 42 U.S.C. § 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 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, plaintiff’s attorney represents that his team spent 33.4 hours litigating plaintiff’s
case before this court (10.05 hours in attorney time, 23.35 hours in paralegal and
administrative time). Dkt. 37-4. Plaintiff’s attorney thoroughly briefed a motion for summary
judgment and provided good arguments in support of remand. And plaintiff’s attorney
obtained favorable results for Mr. Nelson.
The court notes that the contingency fee here is equivalent to an attorney
compensation rate of approximately $380 per hour ($12,718.93 for 33.4 hours of work).
However, 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

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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 $1500.
Koester, 482 F. Supp. 2d at 1083 (collecting cases). Because plaintiff’s attorney skillfully
litigated plaintiff’s case, because he 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”).
One final note: this award requires plaintiff’s attorney to return the balance of his
previously awarded EAJA fee award to plaintiff. In this case, that is $6,238.32. When an
attorney receives fees for the same work under both section 406(b) and the EAJA, the
attorney must return the smaller fee to plaintiff; the EAJA fee award “offsets” the section
406(b) award. Gisbrecht, 535 U.S. at 796 (“Fee awards may be made under both
prescriptions, but the claimant’s attorney must ‘refun[d] to the claimant the amount of the
smaller fee.’”).

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ORDER
IT IS ORDERED that plaintiff’s attorney’s amended unopposed petition for attorney
fee pursuant to § 206(b)(1), Dkt. 39, is GRANTED. The court approves the representative
fee award of $12,718.93, provided plaintiff’s attorney refunds plaintiff $6,238.32.
Entered March 23, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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