Opinion
20-cv-937-wmc
08-03-2023
CHRISTOPHER JENSEN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
Plaintiff's counsel seeks an award of attorney's fees pursuant to 42 U.S.C. § 406(b). (Dkt. #24.) As set forth in plaintiff's motion and attached materials, plaintiff Christopher Jensen was awarded a total $124,502 in past due and auxiliary benefits after remand from this court. Section 406(b) contemplates a fee award not to exceed 25% of the past due benefits, which here works out to a maximum award of $31,125.50, however, counsel reduced her requested amount to $27,400. Plaintiff's counsel also submitted time records, showing that this request for fees is based on 27.40 hours of work, reflecting a $1,000 implied hourly rate. (Pl.'s Mot. Ex. D (dkt. #24-4).)
The Commissioner appropriately filed a response to the § 406(b) fee request, pointing out the possibility of a “windfall recovery” by counsel because the requested fee amount implies an hourly rate of $1,078.74, if the two hours of non-attorney work is treated as the equivalent of one hour of attorney work. (Def.'s Resp. (dkt. #25) 2.) See generally Heise v. Colvin, No. 14-CV-739-JDP, 2016 WL 7266741, at *2 (W.D. Wis. Dec. 15, 2016); Pazour v. Saul, No. 16-cv-020-wmc (W.D. Wis. Oct. 9, 2019); Squiller v. Berryhill, No. 15-cv-485-wmc (W.D. Wis. Aug. 18, 2017).
In her reply brief, plaintiff's counsel was critical of the Commissioner's trustee-like role in reviewing these motions and of her focus on the implied hourly rate, but this is exactly the role and the information the court counts on the Commissioner to provide.
The court agrees with the Commissioner that had counsel requested the full $31,125.50, that would constitute a windfall, and, thus, not be reasonable. See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). As this court explained in Pazour and Squiller, absent extraordinary reasons, an hourly rate of more than $1,000 is unreasonable under § 406(b). However, in this case, counsel has voluntarily reduced her fee award to $27,400.00. In light of plaintiff's counsel's extensive work on this case and the significant award obtained for plaintiff, the court concludes that an hourly rate for this case of $1,000 per hour is reasonable and sufficient to guard against a concern of windfall.
ORDER
Accordingly, IT IS ORDERD that:
1. Counsel's motion for supplemental attorney fees under 42 U.S.C. § 406(b)(1) (dkt. #24) is GRANTED.
2. The court approves representative fees under § 406(b) in the gross amount of $27,400.00.
3. Counsel may retain the $5,262.05 previously awarded in partial satisfaction of the § 406(b) award.
4. The net amount of $22,137.95 shall be disbursed by the Commissioner from any of plaintiff's past-due benefits still being withheld and in accordance with agency policy.