Best, Dawn v. Colvin, Carolyn

Filing 32

ORDER granting 30 Motion for Attorney Fees. Plaintiff Dawn Best awarded attorney fees in the amount of $21,799.45. Signed by District Judge James D. Peterson on 12/27/2016. (arw)

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

DAWN M. BEST,
Plaintiff,
v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

13-cv-837-jdp

Defendant.
Plaintiff Dawn M. Best brought this case to appeal the Commissioner’s decision
denying her application for disability benefits. After full briefing, the court reversed the
Commissioner’s decision and remanded the case. Dkt. 22. On remand, the Commissioner
found Best disabled and awarded substantial past-due benefits. Dkt. 30-2, at 2. Best had
agreed under a contingency fee agreement to pay her counsel 25 percent of the past-due
benefits in the event that she prevailed, Dkt. 30-1, at 1, and the Social Security
Administration has withheld $21,799.45, which is 25 percent of her past-due benefits,
Dkt. 30-2, at 2. This court previously awarded fees in the amount of $5,700 under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412. Dkt. 28.
Best’s attorneys, Thomas Bush and Meredith Marcus,1 now seek their fees under 42
U.S.C. § 406(b) in the amount of $21,799.45. Dkt. 30, at 2 and Dkt. 30-2, at 2. The
Commissioner does not oppose the fee petition. Dkt. 31. The court will grant the unopposed
petition.

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Best’s fee agreement with attorney Bush allows Bush to retain “associate or outside counsel”
as long as the attorney does not increase the total fee amount. Dkt. 30-1, at 1.

When a federal district court enters a judgment in favor of a social security claimant,
the court may award a “reasonable fee” for the counsel’s work before the court, “not in excess
of 25 percent of the total of the past-due benefits.” 42 U.S.C. § 406(b)(1)(A); accord 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 v. Barnhart, 535 U.S. 789, 808 (2002)). “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, Best’s attorneys indicate that they spent a total of 32.62 hours litigating the
case before this court, with most of 31.75 hours, constituting attorney time. Dkt. 30, at 2;
Dkt. 30-3, at 1; Dkt. 30-4, at 1-2. The award is equivalent to an attorney compensation rate
of approximately $686.60 per hour (25 percent of the total of the past-due benefits, the
maximum allowed under § 406(b) divided by 31.75 hours). This puts the proposed fee award
on the higher end of the spectrum, but courts have approved even higher fee awards, such as
$694.44 and $1,500. See Koester, 482 F. Supp. 2d at 1083 (collecting cases). Both attorneys
have substantial experience handling social security cases. See Dkt. 30-5 (Bush resume) and

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Dkt. 30-6 (Marcus resume). Their submissions were well prepared, and they obtained very
favorable results for Best.
Best’s counsel may collect 25 percent of Best’s past-due benefits, which amounts to
$21,799.45. But they must refund the $5,700 fee awarded by the court under the EAJA,
Dkt. 30, at 2.

ORDER
IT IS ORDERED that plaintiff’s attorneys’ unopposed petition for attorney fees
pursuant to § 406(b)(1), Dkt. 30, is GRANTED. The court approves the representative fee
award of $21,799.45 and directs plaintiff’s attorneys to refund the $5,700 fee awarded under
the Equal Access to Justice Act.
Entered December 27, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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