Longway, David v. Colvin, Carolyn

Filing 49

ORDER granting 47 Motion for Attorney Fees in the amount of $13,667.95 by plaintiff David John Longway. Signed by District Judge James D. Peterson on 7/7/2016. (arw)

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

DAVID JOHN LONGWAY,
Plaintiff,
v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

13-cv-556-jdp

Defendant.
Plaintiff David John Longway, through his attorney Dana Duncan, moves the court
for an order awarding $13,667.95 in attorney fees under 42 U.S.C. § 406(b). Dkt. 47. The
Commissioner does not oppose the motion, Dkt. 48, and the court will award it.
The court already awarded Attorney Duncan $11,500 in fees in this case under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Dkt. 42. He now asks for 25 percent
of the past due benefits paid to Longway, pursuant to their fee agreement. That amount,
$15,144, was subject to offset from the $11,500 EAJA award, $10,023.95 of which was
already seized by the Treasury Department. So Duncan seeks an offset of only the difference,
$1,476.05, leaving an award of $13,667.95.
The court is responsible for determining whether the fee is reasonable. Gisbrecht v.
Barnhart, 535 U.S. 789, 807-08 (2002). 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 v. Sullivan, 873 F.2d 974, at 979, 983 (7th Cir. 1989)).
In this case, Attorney Duncan represents that he spent 33.7 total hours litigating
Longway’s case before this court (11.5 hours in attorney time and 22.2 hours in paralegal and
administrative time). Dkt. 44-5. Duncan thoroughly briefed a motion for summary judgment
and provided good arguments in support of remand. And Duncan obtained favorable results
for Longway. Duncan’s requested contingency fee is equivalent to an attorney compensation
rate of approximately $405 per hour ($13,667.95 for 33.7 hours of work). However, the
court will not discount the fee just because it will compensate an 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 a 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 $1500. Koester, 482 F. Supp. 2d at
1083 (collecting cases).
Because Duncan skillfully litigated Longway’s case and obtained favorable results, 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

2

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”).

ORDER
IT IS ORDERED that plaintiff David John Longway’s motion for attorney fees in the
amount of $13,667.95, Dkt. 47, is GRANTED.
Entered July 7, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

3