Westlund, Nichole v. Colvin, Carolyn

Filing 25

ORDER granting 22 Motion for Attorney Fees. Plaintiff's counsel Dana Duncan awarded attorney fees in the amount of $17,877.50. Signed by District Judge James D. Peterson on 6/1/2017. (kwf)

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

NICHOLE WESTLUND,
Plaintiff,
v.

ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

15-cv-450-jdp

Defendant.
In light of the parties’ joint motion, Dkt. 11, the court reversed the Commissioner’s
decision denying plaintiff Nichole Westlund’s application for disability insurance benefits and
remanded the case for further proceedings. Dkt. 12. The court awarded Westlund’s attorney
$5,637.45 in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
Dkt. 20. On remand, the Commissioner determined that Westlund was disabled and awarded
her $56,007 in past-due benefits. Dkt. 22-2. And the Commissioner awarded her son $15,503
in past-due benefits. Dkt. 22-3.
Now Westlund’s attorney, Dana Duncan, moves the court for a representative fee award
of $12,240.05, pursuant to 42 U.S.C. § 406(b). Dkt. 22. Duncan seeks 25 percent of
Westlund’s past-due benefits award, including her son’s award, or $17,877.50, to be offset by
Duncan’s EAJA fee award. Westlund agreed to a 25 percent contingency fee (25 percent of all
past-due benefits awarded to Westlund and her family). Dkt. 22-1. The court will grant
Duncan’s motion.
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). The requested fee is within the cap, but the court must nevertheless review it to ensure
that it 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).
Contingent fee agreements often produce fees that reflect large hourly rates that are not
per se unreasonable. Contingent fee arrangements account for the attorney’s risk of nonrecovery, and awarding a fee consistent with the parties’ agreement motivates attorneys to
represent social security claimants who could not otherwise afford counsel. “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. Following this principle,
district courts across the country have awarded representative fees that reflect varying hourly
rates, including $446, $625, $636, and even as high as $1,500. Koester, 482 F. Supp. 2d at

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1083 (collecting cases). But when the contingent fee agreement would yield an unreasonable
windfall, courts have reduced the award under § 406(b) to an appropriate rate above the
lodestar rate. See, e.g., Schimpf v. Astrue, No. 06-cv-18, 2008 WL 4614658 (N.D. Ind. Oct. 16,
2008) (awarding a fee at a reduced hourly rate of $583.50); Hodges-Williams, 400 F. Supp. 2d
at 1099-100 (awarding a fee at a reduced hourly rate of $350).
Here, the requested fee award is on the generous side of the reasonable scale. Duncan
seeks $17,877.50 for 23.4 hours of attorney time for work performed before this court, which
amounts to an hourly rate of about $764. See Dkt. 22-5. The fee, though a bit on the high side,
is nevertheless reasonable, considering the risks that Duncan assumes by taking on contingency
cases. And Duncan obtained favorable results for his client: Duncan represented Westlund
before this court, reviewed the administrative record, drafted a motion for summary judgment,
and prompted a stipulated remand, which resulted in a favorable determination below.
As Duncan recognizes, the $17,877.50 must be offset by the EAJA fee award that he
already recovered. Gisbrecht, 535 U.S. at 796. Duncan will need to refund the $5,637.45 he
recovered in EAJA fees to Westlund.
One final point. As this court has told Duncan, § 406(b) representative fee awards are
reviewed for reasonableness in view of the attorney’s time before this court. See Heise v. Colvin,
No. 14-cv-739 (W.D. Wis. Dec. 15, 2016). The court cannot consider Duncan’s work from
beginning to end; the court awards § 406(b) fees for work performed here. The court considers
only attorney time when calculating the compensation rate, not paralegal or “administrative”
time. Duncan continues to brief § 406(b) motions as though the court can consider both his
work before the Commissioner in the administrative portion of the case and his firm’s nonattorney work. The court’s review of Duncan’s fee requests would be facilitated by briefing that

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recognizes the parameters of the court’s authority to award fees. Duncan risks denial of future
requests if he disregards this instruction.

ORDER
IT IS ORDERED that plaintiff Nichole Westlund’s attorney’s unopposed motion for
attorney fees pursuant to 42 U.S.C. § 406(b), Dkt. 22, is GRANTED. The court approves a
representative fee award of $17,877.50, provided plaintiff’s attorney returns his EAJA fees to
plaintiff.
Entered June 1, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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