Kallenbach, Monte v. Colvin, Carolyn

Filing 16

ORDER granting in part 15 Amended Motion for Attorney Fees. Plaintiff's attorney awarded attorney fees in the amount of $8,200. Signed by District Judge Barbara B. Crabb on 9/18/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MONTE C. KALLENBACH,

Plaintiff,

OPINION and ORDER

v.
14-cv-761-bbc
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In an order entered in this case on September 6, 2017, I directed plaintiff’s counsel,
Jason Whitley, to provide additional information in support of his motion for attorney fees.
Dkt. #14. Specifically, I asked Whitley to submit (1) a revised accounting of the hours he
spent litigating the case in this court and not in the administrative agency; and (2) a copy
of any fee agreement that he had with plaintiff. Whitley has filed an amended motion for
attorney fees in which he explains that he expended 45.5 hours on the federal case at an
hourly rate of $200, for a total fee of $9,100. Dkt. #15. He also has included a fee
agreement signed by plaintiff on September 20, 2012, which provides that plaintiff will pay
Whitley the lesser of 25% of his past due benefits or $6,000. However, the parties’ previous
submissions show that plaintiff later signed a fee petition form in January 2016, agreeing to
a proposed fee of $14,200.

The Social Security Administration has withheld 25% of

plaintiff’s past-due benefits (or $17,046.75) for attorney fees, and the administrative law

judge who decided plaintiff’s case already awarded Whitley $6,000 for his work performed
before the agency.
As I explained in my previous order, even though the requested fee is within the
statutory cap of 25 percent of past-due benefits, 42 U.S.C. § 406(b), the court must review
it to ensure that it is reasonable in light of the character of the representation and the results
obtained; the time, labor, and skill required; the attorney’s experience, reputation, and
ability; and awards in similar cases. Gisbrecht v. Barnhart, 535 U.S. 789, 807-09 (2002);
McGuire v. Sullivan, 873 F.2d 974, 979-83 (7th Cir. 1989). In Gisbrecht, the Supreme
Court explained that a court’s analysis of a request for fees under § 406(b) begins with the
fee agreement signed by the plaintiff and his counsel. The most recent document signed by
plaintiff shows that he agreed to a total fee of $14,200. Because the administrative agency
already awarded $6,000, Whitley is entitled to no more than an additional $8,200 under his
latest agreement with plaintiff. Therefore, although the requested hourly rate of $200 for
45.5 hours is reasonable, I will reduce Whitley’s requested fee to $8,200, in accordance with
the 2016 fee petition.

ORDER
It is ORDERED that
1. The amended motion for attorney fees pursuant to 42 U.S.C. § 406(b) filed by
plaintiff Monte Kallenbach’s attorney, Jason Whitley, dkt. #15, is GRANTED in part: a
representative fee award of $8,200 is payable to Jason W hitley out of plaintiff’s past-due
benefits.

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2. Plaintiff’s counsel’s initial motion for attorney fees, dkt. #12, is DENIED.
Entered this 18th day of September, 2017.
BY THE COURT:
/s/
_________________________
BARBARA B. CRABB
District Judge

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