United States District Court, N.D. Illinois, Eastern Division
F. MARTIN KIRBY, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
B. Kim Magistrate Judge
attorney moves for $51, 431.75 in attorney's fees
pursuant to 42 U.S.C. § 406(b) after successfully
securing a decision awarding benefits for Plaintiff. The
motion is granted in the amount of $45, 672.20 for the
retained John E. Horn as counsel and applied for disability
insurance benefits in August 2011. (R. 28, Horn's Mot.
¶ 3; R. 22 at 1.) After the Commissioner denied his
application, Horn appeared with Kirby at a hearing before an
administrative law judge (“ALJ”). (R. 22 at 1.)
The ALJ issued a decision denying Kirby benefits in December
2012 and the Appeals Council denied review in June 2014.
(Id. at 1-2; Administrative Record 1-7.) In July
2014, Kirby signed an agreement with Horn providing that Horn
would represent him in an appeal of the Commissioner's
decision before this court in exchange for “25% of any
and all backpay awarded by the Social Security Administration
. . . upon successful completion of the case[.]” (R.
28-4, Ex. D ¶ 2.) Kirby then brought this action, and in
July 2016 this court remanded the case for further
administrative proceedings. (R. 22.) On September 5, 2017,
after a second hearing before an ALJ, Kirby and his
dependents were awarded $205, 727 in past due benefits. (R.
28, Horn's Mot. ¶ 3.)
now seeks 25 percent of those benefits in attorney's
fees, amounting to $51, 431.75. The government argues that this
sum constitutes a windfall because it amounts to an hourly
rate of $1, 612.28 for the 31.9 hours Horn expended on this
case. (R. 34, Govt.'s Resp. at 1 (citing R. 28-1).) The
government asks that the court make an unspecified reduction
of the fee amount requested. (Id. at 5-6.)
Social Security Act (the “Act”) provides that
attorney fees must be reasonable and cannot exceed 25 percent
of the past due benefits. 42 U.S.C. § 406(b). In
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002), the
Supreme Court held that the Act does not displace
contingent-fee arrangements, but rather calls for courts to
assure that those arrangements “yield reasonable
results in particular cases.” The Court noted that
contingent-fee arrangements might be unreasonable if, for
example: (1) the character of and results achieved from
attorney representation do not justify the amount; (2) the
attorney is responsible for delay such that he or she would
profit from the accumulation of benefits; or (3) the benefits
are large in comparison to the amount of time counsel spent
on the case. See Id. at 808.
government does not dispute that Horn's representation
achieved favorable results for Kirby, nor does she contend
that Horn was responsible for any delays in proceedings.
Indeed, these factors weigh in Horn's favor. He has
represented Kirby since 2011 and shepherded his client
through multiple hearings and appeals to a favorable result.
Horn also timely filed his briefs with no requests for
extensions. Rather, the government argues that the requested
fee amount is disproportionately high because it translates
to a $1, 612.28 hourly rate. (See R. 34, Govt.'s Mem. at
3-7.) The court disagrees. As an initial matter,
Gisbrecht discouraged giving primacy to the lodestar
method of calculating attorney fees in the social security
context. See 535 U.S. at 793 (favoring the
“the primacy of lawful attorney-client fee
agreements”); id. at 806-08 (“It is also
unlikely that Congress, when legislating in 1965, intended to
install a lodestar method[.]”). Furthermore, the 31.9
hours Horn spent in this case is not unreasonable given the
length of the record (over 800 pages) and the detailed brief
he drafted to support Kirby's motion for summary
judgment. (See R. 28-1, Ex. A; R. 13, Pl.'s Mem.) This is
not a case in which counsel simply filed boilerplate
pleadings then demanded a full 25 percent fee. See
McGuire v. Sullivan, 873 F.2d 974, 981 (7th Cir. 1989)
(citation omitted) (stating that a deduction would be proper
in such circumstances). If Horn had been less efficient, his
imputed hourly rate would of course be lower. But the court
is reluctant to rely heavily on a method for determining
whether a contingency fee is reasonable that penalizes
efficiency. See Kazanjian v. Astrue, No. 09 CV 3678,
2011 WL 2847439, at *2 (E.D.N.Y. July 15, 2011); see also
Reindl v. Astrue, No. 09 CV 2695, 2012 WL 4754737, at *4
(N.D. Ill. Oct. 4, 2012).
rather than seeking to obtain fees from the government as the
losing party, Horn simply seeks to enforce the contractual
agreement he executed with his client. See Mathis v.
Comm'r of Soc. Sec., No. 13 CV 256, 2017 WL 1483429,
at *1 (W.D. Mich. March 17, 2017) (adopted by Mathis v.
Comm'r of Soc. Sec., No. 13 CV 256, 2017 WL 1464125,
at *1 (W.D. Mich. April 25, 2017)). There is value in
enforcing contingency fee agreements as “effective
means of ensuring claimant access to attorney
representation.” See Gisbrecht, 535 U.S. at
805; see also Reindl, 2012 WL 4754737, at *2. If
courts regularly alter contingency agreements because of high
lodestar calculations, attorneys might lose their incentive
to enter into such agreements in the first place, preventing
claimants of limited means with difficult cases from
obtaining representation. See McGuire, 873 F.2d at
980. As courts in this circuit have recognized, contingent
fee agreements also account for an attorney's
considerable risk of non-recovery. See, e.g., id.;
Abarca v. Berryhill, No. 16-cv-459-jdp, 2017 U.S.
Dist. LEXIS 176360, at *3-4 (W.D. Wis. Oct. 24, 2017);
Salerno v. Colvin, No. 10 CV 2582, 2013 WL 4510171,
at *1 (N.D. Ill. Aug. 26, 2013); Koester v. Astrue,
482 F.Supp.2d 1078, 1080 (E.D. Wis. 2007).
even taking the lodestar calculated rate of $1, 612.28 per
hour into account, the requested fee is not so far afield
from what other courts have awarded as to render it
inappropriate solely on that basis. See, e.g.,
Mathis, 2017 WL 1483429, at *1 (approving approximately
$1, 640 per hour); Smith v. Colvin, No. 14 CV 3923,
Dkt. No. 32 (N.D. Ill.Dec. 21, 2016) (awarding effective rate
of $1, 437 per hour); Reindl, 2012 WL 4754737, at *3
(awarding effective rate of $1, 164.51 per hour);
Kazanjian, 2011 WL 2847439, at *2 (awarding
approximately $2, 100 per hour).
foregoing reasons, and because Horn has already recovered $5,
759.55 in fees under the Equal Access to Justice Act, 28
U.S.C. § 2412, Horn's motion for attorney's fees
is granted in the amount of $45, 672.20.