Naug, Lisa v. Colvin, Carolyn
Filing
32
OPINION and ORDER granting 28 Motion for Attorney Fees; denying as moot 26 Motion for Attorney Fees. The court approves the representative fee of $3,289.75. Signed by District Judge James D. Peterson on 12/12/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LISA NAUG,
Plaintiff,
v.
OPINION and ORDER
NANCY A. BERRYHILL,
Acting Commissioner of
Administration,
the
Social
Security
14-cv-818-jdp
Defendant.
Plaintiff Lisa Naug filed this lawsuit in 2014, seeking review of an administrative
decision that denied her request for disability benefits under the Social Security Act. After oral
argument, the court granted Naug’s motion for summary judgment and remanded the case on
the ground that the administrative law judge failed to adequately justify his decision to
discount the opinion of Naug’s treating physician. Dkt. 15. The court denied the request of
Naug’s counsel, Dana Duncan, for attorney fees under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412, because the Commissioner’s position was substantially justified. Dkt. 25.
On remand, Naug obtained a favorable decision and an award of benefits from the
Commissioner. The Commissioner reserved $13,289.75 of the award for attorney fees, which
represents 25 percent of past-due benefits. Dkt. 28-2. Duncan then filed a fee petition with
the agency for $10,000, which he says is pending.
Duncan now seeks a representative fee award of $3,289.75 from this court pursuant to
42 U.S.C. § 406(b). Dkt. 28.1 Section 406(b) allows the court to award a prevailing plaintiff’s
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Duncan originally asked for $3,295.38 rather than $3,289.75. Dkt. 26. Realizing his error,
Duncan submitted an amended petition with the correct amount, but he did not withdraw his
attorney a reasonable fee, but no greater than 25 percent of past-due benefits. Gisbrecht v.
Barnhart, 535 U.S. 789, 792 (2002). 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 [contingency-fee] contract so long
as the court has reviewed its reasonableness.”). Duncan has an agreement with Naug that allows
Duncan to keep 25 percent of the past-due benefits.
The Commissioner does not oppose Duncan’s request and the request falls within the
25 percent cap, but the court must still decide whether the request is reasonable. When
evaluating a request for fees under § 406(b) for reasonableness, a court may consider “the
character of the representation and the results the representative achieved.” Gisbrecht, 535 U.S.
at 808. The Supreme Court identified two instances in which it would be appropriate to reduce
an award. First, “[i]f the attorney is responsible for delay, . . . a reduction is in order so that
the attorney will not profit from the accumulation of benefits during the pendency of the case
in court.” Id. Second, if the benefits are large in comparison to the amount of time counsel
spent on the case, a downward adjustment is similarly in order.” Id. This court has considered
factors such as the attorney’s experience, reputation and ability as well as awards in similar
cases. Westlund v. Berryhill, No. 15-cv-450, 2017 WL 2389724, at *1 (W.D. Wis. June 1, 2017)
(citing Hodges-Williams v. Barnhart, 400 F. Supp. 2d 1093, 1099 (N.D. Ill. 2005), and McGuire,
873 F.2d at 979, 983).
The court concludes that Duncan’s request is reasonable. Duncan represents that his
team spent 42.65 hours litigating Naug’s case before this court (28.5 hours in attorney time
and 14.15 hours in paralegal and administrative time). Even excluding the paralegal time,
earlier request, so the court will deny it.
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Duncan’s requested award represents an equivalent hourly rate of $115.43. But it is
appropriate in assessing a reasonable fee to consider paralegal time as well. Richlin Sec’y Serv.
Co. v. Chertoff, 553 U.S. 571, 581 (2008) (reasonable attorney fees under Equal Access to
Justice Act includes paralegal time); Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (reasonable
attorney fees under 42 U.S.C. § 1988 includes paralegal time). If Duncan’s paralegal time is
included at the rate he suggests ($125 an hour), the equivalent rate for attorney time is less
than $100.
The equivalent rate Duncan requests is well within the rates approved by this court in
other cases. E.g., Palmer v. Berryhill, No. 16-cv-681, 2018 WL 2248422, at *1 (W.D. Wis. May
16, 2018) (approving effective rate of $614 an hour); Stemper v. Astrue, No. 04-cv-838, 2008
WL 2810589, at *1 (W.D. Wis. July 14, 2008) (approving effective rate of $666 an hour). In
light of Duncan’s experience, the result he obtained, the risk he incurred, and the amounts
awarded in similar cases, I conclude that the requested fee is reasonable.
ORDER
IT
IS
ORDERED
that
Dana
Duncan’s
motion
for
attorney
fees
under
42 U.S.C. § 406(b), Dkt. 28, is GRANTED. The court approves the representative fee of
$3.289.75. Duncan’s earlier motion for fees, Dkt. 26, is DENIED as moot.
Entered December 12, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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