Phillips, Debra v. Colvin, Carolyn

Filing 25

ORDER granting 17 Motion for Attorney Fees Pursuant to 42 U.S.C. §406(b)(1). The court approves the representative fee award of $11,190, provided plaintiff's attorney refunds plaintiff $3,872.61. Signed by District Judge James D. Peterson on 2/28/2017. (kwf)

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

DEBRA PHILLIPS,
Plaintiff,
v.

ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

14-cv-819-jdp

Defendant.
On June 15, 2015, the court reversed and remanded the Commissioner’s decision
denying plaintiff Debra Phillips’ application for disability benefits. Dkt. 9. The court awarded
plaintiff’s attorney fees in the amount of $3,872.61 under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. Dkt. 15. On remand, the Administration awarded plaintiff
$67,807 in past-due benefits.
Now plaintiff’s attorney petitions the court for a representative fee award in the
amount of $11,190, pursuant to 42 U.S.C. § 406(b). Plaintiff signed a contingent fee
contract and agreed to pay her attorney up to “twenty-five percent (25%) of the past due
benefits” awarded. Dkt. 20-1, at 2. The Commissioner has indicated that she 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 21 hours litigating plaintiff’s
case before this court. Plaintiff’s attorney briefed a motion for summary judgment and
provided well-reasoned arguments in support of remand. And plaintiff’s attorney obtained
favorable results for Ms. Phillips: the Commissioner chose to voluntarily remand the case and
on a second hearing the ALJ found Ms. Phillips disabled.
The court notes that the contingency fee here is equivalent to an attorney
compensation rate of approximately $533 per hour ($11,190 for 21 hours of work). But 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 social security
claimants. “If courts regularly invalidated reasonable contingency agreements in favor of a

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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 $1,500. 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: as plaintiff’s attorney acknowledges, this award requires plaintiff’s
attorney to return the previously awarded $3,872.61 EAJA fee award to plaintiff. When an
attorney receives fees for the same work under both § 406(b) and the EAJA, the attorney
must return the smaller fee to plaintiff; the EAJA fee award “offsets” the § 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.’” (quoting
Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat. 186)).

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ORDER
IT IS ORDERED that plaintiff’s attorney’s petition for attorney fees pursuant to
§ 406(b), Dkt. 17, is GRANTED. The court approves the representative fee award of
$11,190, provided plaintiff’s attorney refunds plaintiff $3,872.61.
Entered February 28, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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