Dunn v. O'Malley

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MADISYN D.,
Plaintiff,
v.
FRANK BISIGNANO, Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM DECISION AND
ORDER GRANTING PETITION FOR
406(b) FEES
(DOC. NO. 23)
Case No. 2:23-cv-00867
Magistrate Judge Daphne A. Oberg
Madisyn D.’s1 attorney, Natalie Bolli-Jones, has filed a Petition and Memorandum
for 406(b) Fees.2 Ms. Bolli-Jones seeks an award of attorney’s fees, pursuant to 42
U.S.C. § 406(b), in the amount of $13,022.75. This figure represents twenty-five
percent of the past-due social security benefits awarded to Ms. D.—minus $7,200.00
paid to her attorneys for work done at the administrative level. The Commissioner does
not oppose the petition.3 For the reasons explained below, the court grants the petition.
1 Pursuant to best practices in the District of Utah addressing privacy concerns in court
orders in certain cases, including social security cases, the court refers to the plaintiff by
first name and last initial only.
2 (Pet. and Mem. for 406(b) Fees (Pet.), Doc. No. 23.)
3 (See Def.’s Resp. to Pl.’s Pet. for Att’y’s Fees Under 42 U.S.C. § 406(b) (Resp.), Doc.
No. 25.)
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BACKGROUND
On November 21, 2023, Ms. D. retained Ms. Bolli-Jones, who is an attorney with
the Law Office of Jay Barnes, on a contingent-fee basis to represent her in her claims
for social security benefits before this court.4 	In a written attorney fee agreement, Ms.
Bolli-Jones and Ms. D. agreed the contingency fee would be twenty-five percent of
past-due benefits awarded to Ms. D. in this case.5
Ms. Bolli-Jones filed this action for judicial review of the Commissioner’s denial of
benefits on November 30, 2023.6 On May 17, 2024, the court remanded the case to the
Commissioner for further proceedings.7 Ms. D. then sought $5,040.00 in attorney’s fees
under the Equal Access to Justice Act (EAJA).8 The court granted the motion and
awarded Ms. D. the requested amount, payable to counsel.9
4 (See Ex. A to Pet., Fee Agreement, Doc. No. 23-2.)
5 (Id.)
6 (See Compl., Doc. No. 1.)
7 (See J. in a Civ. Action, Doc. No. 20.)
8 (See Stip. Mot. for Award of Att’y Fees Under the Equal Access to Justice Act, Doc.
No. 21.)
9 (Order Granting Stip. Mot. for Award of Att’y Fees Under the Equal Access to Justice
Act, Doc. No. 22.)
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After the case was remanded, the Commissioner awarded Ms. D. $80,891.00 in
past-due benefits.10 Twenty-five percent of this award is $20,222.75.11 The
Commissioner paid $7,200.00 to Ms. D.’s attorneys for work done at the administrative
level and withheld the remaining $13,022.75 pending the outcome of this fee petition.12
Ms. Bolli-Jones filed this petition asking the court to authorize payment of
$13,022.75 in fees for her representation of Ms. D. before this court.13 This amount
represents twenty-five percent of the past-due benefits minus the administrative fee
award of $7,200.00.14 The itemized statement Ms. Bolli-Jones submitted indicates she
spent 22.4 hours working on Ms. D.’s case before this court.15 Ms. Bolli-Jones further
indicates the $5,040.00 EAJA fee award will be refunded to Ms. D. upon payment of the
requested fee amount under 42 U.S.C. § 406(b).16
The petition states that Ms. Bolli-Jones provided a copy of the petition and all
supporting papers to Ms. D. and notified her of her right to object.17 Ms. D. has not
10 (Ex. C. to Pet., Notice of Award, Doc. No. 23-4.)
11 (See id.; Aff. of Natalie Bolli-Jones in Supp. of [Pet.] for 406(b) Fees (Bolli-Jones Aff.)
¶ 4, Doc. No. 23-1.)
12 (See Ex. C to Pet., Notice of Award, Doc. No. 23-4; Bolli-Jones Aff. ¶ 5, Doc. No.
23-1.)
13 (Pet., Doc. No. 23.)
14 (Bolli-Jones Aff. ¶ 7, Doc. No. 23-1.)
15 (Ex. B to Pet., Itemized Billing Statement, Doc. No. 23-3.)
16 (Bolli-Jones Aff. ¶ 6, Doc. No. 23-1.)
17 (Pet. 2, Doc. No. 23.)
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objected to the fee request. The Commissioner filed a response taking no position on
Ms. Bolli-Jones’ petition.18
ANALYSIS
Section 406(b) provides that an attorney who successfully represents a Social
Security claimant may be awarded “a reasonable fee . . . not in excess of 25 percent of
the total of the past-due benefits.”19 In Gisbrecht v. Barnhart,20 the Supreme Court
indicated that section 406(b) requires district courts to review contingent-fee
agreements “as an independent check, to assure that they yield reasonable results in
particular cases.”21 The Court noted that within the twenty-five percent boundary set by
Congress, “the attorney for the successful claimant must show that the fee sought is
reasonable for the services rendered.”22 In other words, courts must assess the
reasonableness of the contingent-fee agreement and may reduce the amount of fees
where warranted.23
In Gisbrecht, the Court gave several examples of what might cast doubt on the
reasonableness of the contingent-fee agreement and merit a reduced fee. First, the fee
award may be reduced “based on the character of the representation and the results the
18 (See Resp., Doc. No. 25.)
19 42 U.S.C. § 406(b)(1)(A).
20 535 U.S. 789 (2002).
21 Id. at 807.
22 Id.
23 Id. at 808.
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[attorney] achieved.”24 Second, “[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.”25 Third, “[i]f the benefits are large in comparison to the
amount of time counsel spent on the case, a downward adjustment is similarly in
order.”26
Here, Ms. Bolli-Jones’ fee request does not exceed the twenty-five percent
threshold. Nevertheless, pursuant to Gisbrecht, the court examines whether the fee
request is reasonable. First, based on the record in this case, the character of Ms. Bolli-
Jones’ representation of Ms. D. and the results achieved were not substandard. Ms.
Bolli-Jones’ work before this court resulted in remand of the case to the Commissioner,
and a significant award of past-due benefits for Ms. D. at the administrative level.
Second, there is no indication Ms. Bolli-Jones delayed pursuing Ms. D.’s claims. Ms.
Bolli-Jones filed this case less than two weeks after being retained and did not request
any extensions.
Next, Ms. Bolli-Jones’ fee request is reasonable compared to the amount of time
spent on the case. Where Ms. Bolli-Jones spent 22.4 hours on this case, her fee
request of $13,022.75 translates to an hourly rate of $581.37.27 This is within the range
24 Id.
25 Id.
26 Id.
27 (See Pet. 4, Doc. No. 23; Ex. B to Pet., Itemized Billing Statement, Doc. No. 23-3.)
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which courts have found reasonable.28 This hourly rate is also reasonable considering
Ms. Bolli-Jones assumed the risk of not receiving any fees under the contingent-fee
agreement.29 Finally, Ms. Bolli-Jones’ petition is unopposed—further indicating the
requested fees are reasonable and warranted.
CONCLUSION
For the reasons explained above, the requested fee is reasonable under the
contingent-fee agreement between Ms. Bolli-Jones and Ms. D. The court authorizes
Ms. Bolli-Jones to receive a § 406(b) fee award of $13,022.75, which represents
twenty-five percent of Ms. D.’s past-due benefits, less $7,200.00 paid to her attorneys
for work done at the administrative level. In addition, because fees have been awarded
under both § 406(b) and the EAJA, Ms. Bolli-Jones must refund the lesser of the two
fees to Ms. D. (which in this case, are those fees awarded under the EAJA).30
Accordingly, the court orders as follows:
28 See, e.g., Gulbransen v. Colvin, No. 2:12-cv-00107, 2015 U.S. Dist. LEXIS 55176, at
*4 (D. Utah Apr. 27, 2015) (unpublished) (granting a § 406(b) fee request resulting in an
hourly rate of $862.88, an “amount [that] is on the high-end of what the Court would find
to be reasonable,” where there was no other basis to find the fee unreasonable); see
also Jensen v. Dudek, No. 2:23-cv-00036, 2025 U.S. Dist. LEXIS 71828, at *3 (D. Utah
Apr. 15, 2025) (unpublished) (approving $761 hourly rate); Ryan v. O’Malley, No. 1:22-
cv-00102, 2024 U.S. Dist. LEXIS 100039, at *3 (D. Utah June 3, 2024) (unpublished)
(approving a $600 hourly rate).
29 See Faircloth v. Barnhart, 398 F. Supp. 2d 1169, 1174 (D.N.M. 2005) (finding § 406(b)
attorney fee award translating to an hourly rate of $510.25 reasonable, particularly
“when that fee is considered in conjunction with a Social Security lawyer’s risk of loss”).
30 See Gisbrecht, 535 U.S. at 796 (recognizing that “[f]ee awards may be made under
both [EAJA and § 406(b)], but the claimant’s attorney must refund to the claimant the
amount of the smaller fee.” (internal quotation marks omitted)).
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1. 	Ms. Bolli-Jones’ Petition for 406(b) Fees31 is granted. Ms. Bolli-Jones is
awarded § 406(b) fees in the amount of $13,022.75 (payable to Natalie Bolli-Jones).
2. 	Ms. Bolli-Jones must refund to Ms. D. the previous EAJA fee award of
$5,040.00, upon payment of the § 406(b) award.
DATED this 12th day of November, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
31 (Doc. No. 23.)
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