Weems v. Astrue

Filing 28

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 5/29/2015. (jnls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

May 29, 2015

LETTER TO COUNSEL

RE:

James A. Weems v. Commissioner, Social Security Administration;
Civil No. SAG-12-2993

Dear Counsel:
Frederick A. Raab, Esq. has filed a motion for attorney’s fees pursuant to the Social
Security Act (“SSA”), 42 U.S.C. § 406(b), in conjunction with his representation of James A.
Weems before this Court. (ECF No. 22). In response, the Commissioner asked the Court to
consider whether enforcement of the contingent fee agreement in this case would result in a
windfall to Mr. Raab. (ECF No. 24). I have considered those filings and Mr. Raab’s reply to the
Commissioner’s response. (ECF No. 25). No hearing is necessary. See Loc. R. 105.6 (D. Md.
2014). For the reasons set forth below, Mr. Raab’s motion for attorney’s fees is GRANTED.
In this case, Mr. Weems was awarded $144,105.90 in past due benefits, twenty-five
percent of which, $36,026.48, was withheld to pay attorney’s fees in an amount approved by this
Court. Pl. Mot. Ex. 2, at 6. Because Mr. Raab has already received $6,000.00 for representing
Mr. Weems in his administrative proceedings, Mr. Raab now requests $30,026.48 for
representing Mr. Weems before this Court. Pl. Mot. 1.
The Social Security Act authorizes a reasonable fee for successful representation before
this Court, not to exceed twenty-five percent of a claimant’s total past-due benefits. 42 U.S.C. §
406(b). Although contingent fee agreements are the “primary means for by which fees are set”
in Social Security cases, a court must nevertheless perform an “independent check, to assure that
they yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807
(2002). In this case, Mr. Raab and Mr. Weems entered into a contingent fee agreement, by
which Mr. Weems agreed to pay Mr. Raab twenty-five percent of all retroactive benefits to
which he might become entitled. (ECF No. 18-5). In a previous motion for attorney’s fees
pursuant to the EAJA, Mr. Weems submitted an itemized report documenting the 31.8 hours Mr.
Raab expended before this Court in Mr. Weems’s case. (ECF No. 18-7). If Mr. Raab receives
the full amount of fees he requests, his fee for representation before this Court will effectively

James A. Weems v. Commissioner, Social Security Administration
Civil No. SAG-12-2993
May 29, 2015
Page 2

total $944.22 per hour.1 Mr. Raab must therefore show that an effective rate of $944.22 per hour
is reasonable for the services he rendered. See Gisbrecht, 535 U.S. at 807.
In his reply, Mr. Raab primarily argues that his requested fee is reasonable due to his
expertise, which he claims allowed him to expend fewer hours obtaining a favorable result than
would have been spent by a less experienced attorney in obtaining the same result. Pl. Reply 34. In determining whether a request for attorney’s fees under section 406(b) is reasonable, the
Supreme Court has explained that a reviewing court may properly consider the “character of the
representation and the results the representative received.” Id. at 808.
As a metric of reasonableness, the Sixth Circuit has considered whether the hourly rate
generated by enforcing the contingency fee agreement is more than twice the standard market
rate. See Hayes v. Sec’y of Health and Human Servs., 923 F.2d 421, 422 (6th Cir. 1991)
(holding that hypothetical hourly rates that are less than twice the standard market rate are per se
reasonable); but see Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309-10 (6th Cir. 2014) (noting
that the Supreme Court’s decision in Gisbrecht “elides strict presumptions altogether,” but
nevertheless considering that the requested hourly rate was more than quadruple the standard
rate). In this case, Mr. Raab’s requested fee results in slightly less than twice the top hourly rate
that is presumptively reasonable for attorneys of his experience level pursuant to the guidelines
appended to the Local Rules of this Court.2 Although Mr. Raab’s requested rate far exceeds the
typical rate awarded by this Court for attorney’s fees in Social Security appeals, this case
presents a relatively unique set of factual circumstances which allow me to conclude that the rate
is warranted. With respect to the results Mr. Raab’s representation obtained, I note not only that
Mr. Weems’s case was remanded to the agency, but also that the Court found remand
appropriate based on two of only three arguments raised in Mr. Weems’s motion for summary
judgment. This Court often determines that remand in Social Security cases is appropriate for
only one of a multitude of arguments raised by counsel, and occasionally it determines that
remand is appropriate for reasons not raised by counsel at all. Mr. Raab’s representation in this
case was both highly effective and highly efficient. In addition, I note that Mr. Weems has
submitted a letter to the Court expressing his understanding of and his satisfaction with the fee
agreement, which indicates the value to Mr. Weems of Mr. Raab’s representation. Pl. Reply Ex.
3; see Bowser v. Astrue, No. PWG-09-969, 2011 WL 673767, at *3 (D. Md. Feb. 17, 2011)

1

After his case was remanded pursuant to this Court’s September 5, 2013, Order, Mr. Weems sought and was
awarded $5,963.79 in attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
(ECF Nos. 18, 21). If Mr. Raab receives the full amount of attorney’s fees he requests pursuant to the Social
Security Act, he must reimburse to Mr. Weems the $5,963.79 in fees he received pursuant to the EAJA. See
Gisbrecht, 535 U.S. at 796; Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 135 (4th Cir. 2009). In calculating the
hourly rate of his attorney’s fees, Mr. Raab suggests that the Court also subtract the amount of the fees he received
under the EAJA. However, their value should be included in calculating the total hourly rate for Mr. Raab’s
services before this Court, since the amount will be included in the total payment to Mr. Raab.
2

Although they do not govern Social Security cases, the Local Rules prescribe guidelines for determining attorneys’
fees in certain cases, which are instructive in evaluating the reasonableness of the effective hourly rate in this case.
See Loc. R. App’x B (D. Md. 2014). For attorneys admitted to the bar for twenty years or more, the presumptively
reasonable hourly rate is between $300.00 and $475.00 per hour. Id.

James A. Weems v. Commissioner, Social Security Administration
Civil No. SAG-12-2993
May 29, 2015
Page 3

(according “some weight” to the claimant’s consent to the fee requested). Thus, given Mr.
Raab’s extensive experience and the unique circumstances in this case, the fee requested by Mr.
Raab is reasonable.
For the reasons set forth herein, Mr. Raab’s motion for attorney’s fees (ECF No. 22) will
be GRANTED for $30,026.48. The clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion.
implementing order follows.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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