Christian S. Arnold v. MARTIN J. O'MALLEY, Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1305
C HRISTIAN S. A RNOLD,
Plaintiff-Appellant,
v.
MARTIN J. O'MALLEY,
Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 20-cv-03344 — Sue E. Myerscough, Judge.
____________________
A RGUED NOVEMBER 15, 2023 — DECIDED J ULY 1, 2024
____________________
Before SYKES , Chief Judge, and BRENNAN, and L EE , Circuit
Judges.
P ER C URIAM. After a remand from the district court, an ad-
ministrative law judge (ALJ) with the Social Security Admin-
istration determined that Christian Arnold was disabled and
entitled to past-due benefits. His law firm, Binder & Binder,
then requested attorneys’ fees under 42 U.S.C. § 406(b), point-
ing to a contingency fee agreement Arnold had signed. Rather

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2 No. 23-1305
than adhering to the agreement, the district court reduced the
request by nearly sixty percent, concluding that the full re-
quest amounted to a “windfall” to Binder, proscribed by stat-
ute. Binder appeals, arguing that the court abused its discre-
tion by declining to award its requested fees, which the con-
tingency fee agreement prescribed and the statute allowed.
We have not had occasion to apply the Supreme Court’s
decision in Gisbrecht v. Barnhart, 535 U.S. 789 (2002), to deter-
mine when and under what circumstances a district court can
deviate from contracted-for fees under § 406(b). We take this
opportunity to explain how a court should go about this anal-
ysis. Here, we conclude that the district court abused its dis-
cretion by not anchoring its analysis first and foremost on the
contingency agreement before otherwise considering the rea-
sonableness of the request. Accordingly, we vacate and re-
mand for further proceedings consistent with this opinion.
I. Background
In April 2018, Arnold retained Binder & Binder (Binder) to
pursue a claim for disability insurance benefits before the So-
cial Security Administration (the Administration). 1 The ALJ
concluded that Arnold was not disabled, and the Appeals
Council denied his request for review. Arnold decided to ap-
peal the agency action in the district court and entered into a
new retainer and fee agreement with Binder to represent him.
1 Arnold is the named appellant, but the real party in interest is Binder
& Binder, which is challenging the decision to reduce its fees. See Gisbrecht,
535 U.S. at 798 n.6. And although the Commissioner lacks a financial stake
in this appeal because the fees will be taken from Arnold’s benefits, the
Commissioner resembles “a trustee for the claimant[].” See id.

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No. 23-1305 3
In the district court proceedings, Binder eventually moved
for summary judgment. In support of the motion, Binder filed
a twenty-three-page brief that outlined Arnold’s medical his-
tory and argued that the ALJ had failed to properly evaluate
the various medical opinions in the record and Arnold’s sub-
jective statements about his symptoms. Rather than filing a
response, the Commissioner agreed that remand was appro-
priate, and the district court returned the case to the Appeals
Council for further proceedings. The court then approved the
parties’ proposed motion for fees and costs under the Equal
Access to Justice Act, see 28 U.S.C. § 2412, and awarded Binder
$5,694.44.
The Appeals Council then remanded the case to the ALJ,
who issued a decision in Arnold’s favor in October 2022. In it,
the ALJ explained that Arnold was disabled as of December
2016 and that no further proceedings were necessary. As a re-
sult, the Administration issued a Notice of Award, informing
Arnold that he was entitled to $160,797.10 in past-due bene-
fits, which covered the period from May 2017 to September
2022. The Notice also told Arnold that the Administration had
withheld twenty-five percent of his retroactive benefits (the
statutory maximum) as potential attorneys’ fees.
After obtaining this result, Binder moved in the district
court for attorneys’ fees under 42 U.S.C. § 406(b). Its contin-
gency fee agreement with Arnold states that, if the district
court remands his case and the Appeals Council or an ALJ
awards Arnold past-due benefits:
[T]he law firm may apply for fees under
42 U.S.C. § 406(a) and/or § 406(b). These [sic]
combined amount of these fees will not exceed

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4 No. 23-1305
25% of any back due benefits due to [Arnold]
and [his] family.
(emphasis removed).2 (Section 406(a) governs attorneys’ fees
for representation before the Administration; § 406(b) gov-
erns fees for representation before federal courts. Gisbrecht,
535 U.S. at 794.)
In its motion, Binder sought twenty-five percent of Ar-
nold’s retroactive benefits (here, $40,199.27) and stated that it
would refund to Arnold the $5,694.44 it already had received
under § 2412, as required. See Gisbrecht, 535 U.S. at 796. Rely-
ing on Gisbrecht, Binder asserted that its request was reasona-
ble given the quality and success of the representation. Binder
also submitted records showing that it had spent 28.2 hours
on Arnold’s case in the district court. According to Binder, alt-
hough the fee it sought represented an average hourly rate of
$1,425.51, other district courts in this circuit had approved
similar fees. Arnold did not file an objection to Binder’s re-
quest.
The Commissioner, however, did. Observing that
$1,425.51 was much higher than the average billing rate for
Illinois attorneys generally as well as rates approved by dis-
trict courts in Social Security cases, the Commissioner argued
that awarding the full twenty-five percent would result in a
2 At argument, we questioned whether Binder’s agreement was a con-
tingency agreement because it simply reproduced what the statute allows.
It did not require Arnold to agree that Binder would seek twenty-five per-
cent, or any amount, of his benefits or define the “fees” other than to say
they “will not exceed 25%.” But this issue was not raised in the district
court or briefed on appeal, so we assume for the purposes of this appeal
that Arnold and Binder agreed that Arnold would pay up to twenty-five
percent of his recovery in fees.

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No. 23-1305 5
windfall to Binder and urged the court to award a lesser
amount. As Binder saw it, the Commissioner’s position im-
permissibly focused on the effective hourly rate and ignored
the significant risk of nonpayment Binder bore when it took
the case on a contingent basis. Binder referred to Fields v. Ki-
jakazi, 24 F.4th 845, 851, 852 (2d Cir. 2022), a case with a similar
procedural history where the court determined that an effec-
tive hourly rate of $1,556.98 was reasonable and not a wind-
fall.
The district court agreed with the Commissioner and
awarded only $16,920, which was 28.2 hours multiplied by an
hourly rate of $600. In doing so, the court acknowledged that
Binder had demonstrated substantial experience litigating So-
cial Security cases. Nor was there any indication that Arnold
was dissatisfied with Binder or that Binder had unnecessarily
protracted the proceedings. Nevertheless, the court con-
cluded that the “case did not present any particularly difficult
challenges or any extraordinary circumstances” and re-
counted that it had found hourly rates of $300 to $600 to be
reasonable in recent “Second Amendment” cases involving
attorneys with “comparable expertise and experience.” As
such, the court determined that $600 was a more reasonable
rate that would ensure that Binder did not receive a windfall.
We now turn to Binder’s appeal.
II. Discussion
A. The Statute and Caselaw
Section 406(b) permits attorneys to recover fees for their
work in federal court on behalf of Social Security claimants.
As relevant here, the provision states:

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6 No. 23-1305
Whenever a court renders a judgment favorable
to a claimant under this subchapter who was
represented before the court by an attorney, the
court may determine and allow as part of its
judgment a reasonable fee for such representa-
tion, not in excess of 25 percent of the total of the
past-due benefits to which the claimant is enti-
tled by reason of such judgment ….3
42 U.S.C. § 406(b)(1)(A).
But how does one determine reasonableness under
§ 406(b) when the claimant-attorney relationship is governed
by a contingency agreement (that satisfies the statutory
twenty-five percent cap)? The federal circuit courts had an-
swered this question in different ways. Our approach was to
enforce reasonable contingency agreements because “simply
determining a reasonable hourly rate is inappropriate when
an attorney is working pursuant to a reasonable contingency
contract.” See McGuire v. Sullivan, 873 F.2d 974, 980 (7th Cir.
1989). Other circuits began with the well-known “lodestar”
3 We have not expressly stated that a claimant’s award of benefits after
a case is remanded for further proceedings is “by reason of” the court’s
judgment. But we have suggested as much, see Smith v. Bowen, 815 F.2d
1152, 1155 (7th Cir. 1987), and every circuit to consider the issue has con-
cluded that attorneys may seek fees under § 406(b) when a court remands
for further proceedings, see Jackson v. Astrue, 705 F.3d 527, 529 (5th Cir.
2013); Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006);
McGraw v. Barnhart, 450 F.3d 493, 496 (10th Cir. 2006); Conner v. Gardner,
381 F.2d 497, 500 (4th Cir. 1967); see also Sinkler v. Berryhill, 932 F.3d 83, 85
(2d Cir. 2019); Philpott v. Gardner, 403 F.2d 774, 775 (6th Cir. 1968); Gardner
v. Menendez, 373 F.2d 488, 490 (1st Cir. 1967); cf. Parrish v. Comm’r of Soc.
Sec. Admin., 698 F.3d 1215, 1221 (9th Cir. 2012); Fenix v. Finch, 436 F.2d 831,
835 (8th Cir. 1971).

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No. 23-1305 7
method, multiplying the hours an attorney reasonably spent
on the case by a “reasonable” rate; courts could then adjust
the amount to account for numerous factors, including a
case’s complexity and the risk of nonpayment to an attorney
in a contingency arrangement. See e.g., Gisbrecht v. Apfel, 238
F.3d 1196, 1197–98 (9th Cir. 2000), rev’d, Gisbrecht, 535 U.S. at
799.
1. Gisbrecht v. Barnhart
The Supreme Court attempted to resolve the circuit disa-
greement in Gisbrecht v. Barnhart. Observing that contingency
fee contracts are “the most common fee arrangement between
attorneys and Social Security claimants,” 535 U.S. at 800, the
Court concluded that § 406(b) compels district courts to ac-
cept the “primacy” of such fee agreements, id. at 793. Only
then does § 406(b) call for “review of such arrangements as an
independent check, to assure that they yield reasonable re-
sults in particular cases.” Id. at 807. In arriving at this conclu-
sion, the Court rejected the lodestar method as a starting point
for the reasonableness analysis under § 406(b). On the way,
the Court reviewed § 406(b)’s text as well as its legislative his-
tory, with particular attention to Congress’s decision in 1965
to cap § 406(b) fees at twenty-five percent of a claimant’s past-
due benefits. Id. at 806. Given this, the Court observed, “[i]t is
also unlikely that Congress … intended to install a lodestar
method courts did not develop until some years later.” Id.
Grounding a § 406(b) reasonableness analysis on a lode-
star calculation, the Court explained, was also inapt because
the lodestar methodology arose in the context of fee-shifting
statutes, where the losing side pays the fees of the prevailing
party. Id. at 802. By contrast, under § 406(b), the claimant is
the one who pays the fees from his award. Id.

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8 No. 23-1305
How, then, should a district court handle contingent fee
agreements under § 406(b)? In the Court’s words:
[Section] 406(b) does not displace contingent-
fee agreements as the primary means by which
fees are set for successfully representing Social
Security benefits claimants in court. Rather,
§ 406(b) calls for court review of such arrange-
ments as an independent check, to assure that
they yield reasonable results in particular cases.
Id. at 807.
Put another way, courts should “look[] first to the contin-
gent-fee agreement, then test[] it for reasonableness” based on
the “character of the representation,” the results achieved,
whether the attorney was responsible for any delay, and
whether “the benefits are large in comparison to the amount
of time counsel spent on the case.” Id. at 808. And, it is with
respect to this last factor that a court may consider the hours
an attorney spent representing a claimant and the attorneys’
billing rates in non-contingency cases “as an aid to the court’s
assessment of the reasonableness of the fee yielded by the fee
agreement.” Id. In announcing this test, however, the Court
cited with approval a case holding that judges should “disal-
low ‘windfalls for lawyers,’” id. (citing Rodriquez v. Bowen, 865
F.2d 739, 747 (6th Cir. 1989) (en banc)), paving the way for
much debate about what constitutes an impermissible “wind-
fall” under § 406(b), see id. at 809 (Scalia, J., dissenting) (“I do
not know what the judges of our district courts and courts of
appeals are to make of today’s opinion.”).

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No. 23-1305 9
2. Post-Gisbrecht Cases
The decisions analyzing § 406(b) since Gisbrecht suggest
that applying it has proven challenging. See, e.g., Jeter v.
Astrue, 622 F.3d 371, 377 (5th Cir. 2010) (unsurprised that
many courts view Gisbrecht as containing a “contradictory
mandate”); Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir.
2009) (en banc) (noting that Gisbrecht did not give courts a
“definitive list of factors” or explain how to weigh factors to
determine reasonableness of requested fee). And much of the
confusion surrounds the meaning of the term “windfall,” see
Fields, 24 F.4th at 849, 853 (noting that most of the reasonable-
ness factors are “straightforward and readily applied,” but
“[t]he ‘windfall’ factor … is less clear”), although, it must be
said, the Supreme Court itself never employed the term in
Gisbrecht. (Rather, the Court cited Rodriquez and included in a
parenthetical a quote from that case in which “windfall” ap-
pears.)
Binder urges us to follow the Second Circuit’s decision in
Fields, which has a procedural background similar to the one
here, except that there were two appeals to the district court,
and the Commissioner twice stipulated to a remand to the
agency. 24 F.4th at 850. The claimant was eventually awarded
$160,680 in past-due benefits. Id. at 851. Binder, which also
represented the claimant in Fields, sought twenty-five percent
of the award, or $40,170, in attorneys’ fees, translating to an
average hourly rate of $1,556.98. Id. The magistrate judge re-
duced the fee award to $19,350, representing an average of
$750 per hour. Id. at 852. The magistrate judge’s determina-
tion “rested entirely” on the belief that the effective hourly fee
would be an unreasonable “windfall.” Id. at 851–52.

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10 No. 23-1305
On appeal, the Second Circuit held that the magistrate
judge had abused his discretion and awarded Binder the full
amount it sought. Salient here, the court sought to make clear
that “the windfall factor does not constitute a way of reintro-
ducing the lodestar method and, in doing so, to indicate the
limits of the windfall factor.” Id. at 854. Rather, the court in-
terpreted the windfall exception narrowly, holding that for a
fee recovery to be unreasonable because it is a “windfall” it
must be “truly clear that the fee is unearned by counsel.” Id.
at 849. Accordingly, in conducting this inquiry, the court in-
structed, judges should consider factors beyond the effective
hourly rate, including (1) the ability and expertise of counsel,
(2) the nature of the attorney’s relationship with the client, (3)
the claimant’s satisfaction, and (4) how certain it was that the
claimant would prevail. Id. at 854–55; see also Jeter, 622 F.3d at
376 (affirming when court considered attorney’s expertise,
adequacy of representation, amount claimant recovered, per-
centage of award sought by attorney, attorney’s risk of loss,
and hourly rate). These factors, said the court, allow for the
possibility that a relatively high rate is “perfectly reasonable,
and not a windfall.” Fields, 24 F.4th at 854.
We agree with the Second Circuit that the “windfall fac-
tor” should not become “a way of reintroducing the lodestar
method.” Id. Indeed, given that Gisbrecht never actually em-
ploys the word “windfall” in the body of the opinion, we
question the outsized attention the term has received. Instead,
we return to the foundational rule the Supreme Court an-
nounced in Gisbrecht—the award set by the contingency
agreement must be the anchor of the court’s reasonableness
analysis under § 406(b). That said, as we noted in McGuire,
873 F.2d at 981, we do not go so far as to grant contingency
fee agreements a rebuttable presumption of reasonableness as

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No. 23-1305 11
the Sixth Circuit has, see Lasley v. Comm’n of Soc. Sec. 771 F.3d
308, 309 (6th Cir. 2014). Rather, a district court must begin
with the contingency award as its polestar and consider
whether that amount should be reduced because it is unwar-
ranted based on relevant factors, such as the claimant’s satis-
faction with their attorney’s representation, the attorney’s ex-
pertise and efforts expended, whether the attorney engaged
in any undue delay or overreaching, the uncertainty of recov-
ery and risks of an adverse outcome, and how the effective
hourly rate compares to others in the field and jurisdiction.
See Crawford, 586 F.3d at 1151; Jeter, 622 F.3d at 376. To be sure,
this list is not meant to be exhaustive. Moreover, the inquiry
is case-specific, and it will not produce the same results in
every case.
This approach adheres to the dictate in Gisbrecht that
courts should give primacy to fee agreements, while still leav-
ing room for district courts to act as a “check” on contingent-
fee arrangements that result in unreasonable fees, including
when “benefits are large in comparison to the amount of time
counsel spent on the case.” See 535 U.S. at 807–08.
B. Application to this Appeal
Turning to this appeal, we review the district court’s order
allocating fees for an abuse of discretion. O’Donnell v. Saul,
983 F.3d 950, 954 (7th Cir. 2020). It is the attorney’s burden to
show that the fee sought under the contingency agreement is
“reasonable for the services rendered.” Gisbrecht, 535 U.S. at
807. A district court’s reasonableness determination “ordinar-
ily qualif[ies] for highly respectful review.” Id. at 808. But an
abuse of discretion may occur when a district court “reaches
erroneous conclusions of law,” Gastineau v. Wright, 592 F.3d

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12 No. 23-1305
747, 748 (7th Cir. 2010) (citation omitted), or fails to provide
an explanation for its conclusions, McGuire, 873 F.2d at 985.
Although it acknowledged Gisbrecht’s command to look
first to the contingency agreement, the district court centered
its analysis on an hourly rate it thought was reasonable, not
the contractual arrangement between Binder and Arnold.
The court gave two reasons to support its conclusion that
a twenty-five percent fee would be a windfall. The first—that
the “case did not present any particularly difficult challenges
or any extraordinary circumstances”—could be read to align
with Gisbrecht’s assertion that reductions may be appropriate
when the award is large compared to the time counsel spent
on the case. See 535 U.S. at 808. Indeed, we have just stated
that the degree of difficulty and counsel’s effort are relevant
factors.4
But, rather than starting with the contingent fee amount
and finding reasons to adjust downward, the district court
here did the opposite; it started with an hourly rate it deemed
reasonable and asked whether the rate should be adjusted up-
ward. This is the opposite of the approach Gisbrecht teaches.
See Crawford, 586 F.3d at 1149 (correct question is whether the
4 Binder argues that the court did not explain its conclusion about the
case’s difficulty, and that, regardless, the court’s conclusion was errone-
ous because the case involved new regulations. But, as the Commissioner
points out, the court’s observations about the case—the length of the rec-
ord and counsel’s memorandum, and the Commissioner’s decision to
move for a remand—might support its view that it was relatively simple,
so the maximum fee was unjustified. See McGuire, 873 F.2d at 982 (sug-
gesting attorneys should not pursue twenty-five percent of past-due ben-
efits except in “difficult” cases).

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No. 23-1305 13
contingency “amount need be reduced, not whether the load-
star [sic] amount should be enhanced”).
The court’s second reason for reducing Binder’s requested
fee also conflicts with Gisbrecht. The court explained that it
had “assessed the reasonableness of requested attorney’s fees
in Second Amendment cases and [had] found effective hourly
rates of $300 to $600 reasonable.” The attorneys in these cases,
see Pub. Int. Legal Found., Inc. v. Matthews, No. 20-cv-3190 (C.D.
Ill. June 8, 2022); Moore v. Madigan, No. 3:11-cv-3134 (C.D. Ill.
July 21, 2015), had comparable expertise and experience to the
Binder lawyers, the court said. But those cases involved fee-
shifting statutes, see 42 U.S.C. § 1988; 52 U.S.C. § 20510, which
traditionally involve lodestar calculations. As Binder cor-
rectly noted and as we explained above, in Gisbrecht, the Su-
preme Court expressly stated that § 406(b) is not comparable
to fee-shifting statutes. We therefore would not expect in the
ordinary case for district courts to consult fee-shifting cases to
determine the reasonableness of a contingency fee under
§ 406(b). And, to the extent a district court finds such a com-
parison helpful, it should lay out its reasons for thinking so.
For these reasons, we conclude that the district court
abused its discretion when it applied the incorrect legal
framework for reviewing the reasonableness of the fees
Binder requested under § 406(b). We offer no opinion about
the reasonableness of the contingency fee agreement or
Binder’s requested fees. We also leave it to the district court
to decide what impact, if any, Binder’s prior receipt of $6,000
under § 406(a) has on its request for fees under § 406(b) and
its contingency agreement with Arnold.
VACATED and REMANDED

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