concurring in part and dissenting in part.
Our original decision to give en banc consideration to these cases was predicated upon the fact that there was a wide divergence in the district courts of this circuit in the consideration of contingent fee contracts when computing appropriate attorney fee awards in social security cases. Some district judges were simply rejecting the contingent fee contracts and indicating that they were entitled to no consideration. At the other extreme were judges who were honoring the contingent fee contract simply on the basis that such a contract existed. Insofar as the majority indicates that neither of these approaches is correct and that district courts must determine the reasonableness of the fee on a case-by-case basis, I wholeheartedly concur. However, in the course of trying to simplify the computation of fee awards, both at the district court level and upon review by this court, the majority has gone further than our charter will allow. I am particularly concerned with the establishment of a rebut-table presumption that, where a contingent fee contract exists, the attorney shall be entitled to a fee that equals 25% of the award. I find this to be inconsistent with legislative intent. It also has the effect of shifting the burden to the Secretary to demonstrate the unreasonableness of the fee rather than requiring the claimant’s attorney to demonstrate its reasonableness. There are a plethora of cases that have addressed the question of fee awards in social security cases, and at least twelve factors have been identified which should be considered in the fee calculus. It seems particularly inappropriate to single out any one factor and accord it rebuttable presumption status. In establishing this re-buttable presumption, the majority fails to distinguish between the significance of the existence of a contingent fee contract and the contingent nature of the result in the case. As a practical matter, most social security cases are taken by attorneys on a contingent fee basis, and one can really tell nothing about the degree of difficulty or likelihood of the success of the case from the fact of the contingent fee contract alone. Further, I think the Supreme Court has spoken on this issue in the case of Pennsylvania v. Delaware Valley Citizen’s Council, 483 U.S. 711, 107 S.Ct. 3078, 3085, 97 L.Ed.2d 585 (1987), when it stated:
At most, therefore, Johnson suggests that the nature of the fee contract between the client and his attorney should be taken into account when determining *750the reasonableness of a fee award, but there is nothing in Johnson to show that this factor was meant to reflect the contingent nature of prevailing in the lawsuit as a whole.
The Court goes on to explain that the existence of a contingent fee contract is of some value to the court in that it is an indication of the expectation of the parties prior to the institution of the lawsuit. When it comes to the matter of enhancement of a fee, however, it is not the existence of the contingent fee contract that the district court should look to, but it is the contingent nature of the result that could reasonably have been expected. Contingent fee contracts are a method of financing litigation in which a client not able to advance the costs and fees of an attorney nonetheless is able to secure competent legal assistance. Thus, we find contingent fee contracts in cases which are sure winners as well as cases that are almost sure losers. As the Supreme Court stated in Delaware Valley, the contingent fee contract does not “reflect the contingent nature of prevailing in the lawsuit as a whole.” 107 S.Ct. at 3085. Although Delaware Valley is a fee-shifting case and does not involve the awarding of fees in social security cases, I think that the rationale of the decision as relates to contingent fee contracts is completely transferable to the context in which we decide the appeals before us today.
I have nothing but sympathy for the district court judges and, for that matter the appellate judges, who have to wrestle with the residue of cases after the substantive issues have been decided. However, insofar as attorneys’ fees are concerned, this is a duty that Congress has placed upon us and it requires the exercise of our discretion. The establishment of a rebut-table presumption as the majority has done unduly limits the discretion of the district judge in the first instance beyond that which Congress intended. Once we have informed the district courts that these matters must be resolved on a case-by-case basis and that, in the exercise of their discretion the contingent fee contract is one factor for consideration, we have gone as far as we can go within the context of the cases that we took for review.1
. Although writing separately, I also concur in Judge Wellford’s dissent.