Cite as: 535 U. S. 789 (2002)
Scalia, J., dissenting
fee" provision of the statute anticipates such a case-by-case ex post assessment of ex ante predictions in the thousands of (mostly small recovery) Social-Security-benefit cases. It is something quite different, however—and something quite irrational—to look at the consequences of a contingent-fee agreement after the contingencies have been resolved, and proclaim those consequences unreasonable because the attorney has received too much money for too little work. That is rather like declaring the purchase of the winning lottery ticket void because of the gross disparity between the $2 ticket price and the million-dollar payout.2
I think, in other words, that the "reasonable fee" provision must require either an assessment of the reasonableness of the contingent-fee agreement when it was concluded, or an assessment of the reasonableness of the fee charged after the outcome and work committed to it are known; it cannot combine the two. And since an ex post assessment of the ex ante reasonableness of the contingent-fee agreement (already limited by statute to a maximum 25% of the recovery) is not what the statute could conceivably have contemplated, I conclude that a "reasonable fee" means not the reasonableness of the agreed-upon contingent fee, but a reasonable recompense for the work actually done. We have held that this is best calculated by applying the lodestar,
2 There is one ex post element prominent in Social-Security-benefit cases that assuredly should reduce the amount of an otherwise reasonable (that is to say, an ex ante reasonable) contingent-fee award: Since the award is based upon past-due benefits, and since the amount of those benefits increases with the duration of the litigation, a lawyer can increase his contingent-fee award by dragging his feet. It is unreasonable to be rewarded for dilatoriness. But that element need not be made part of an overall ex post reasonableness assessment, as the Court would do, see ante, at 808. For it is not only unreasonable; it is a breach of contract. Surely the representation agreement contains as an implicit term that the lawyer will bring the matter to a conclusion as quickly as practicable—or at least will not intentionally delay its conclusion. Any breach of that condition justifies a reduction of the contracted contingent-fee award.
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