Garback v. Colvin

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 5/15/2017. (dass, 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 15, 2017

LETTER TO COUNSEL

RE:

Melissa Renee Garback v. Commissioner, Social Security Administration;
Civil No. SAG-15-145

Dear Counsel:
Frederick A. Raab, Esq. has filed a motion for attorneys’ fees pursuant to the Social
Security Act (“SSA”), 42 U.S.C. § 406(b), in conjunction with his representation of Melissa
Renee Garback before this Court. (ECF No. 19). In response, the Commissioner asked the Court
to consider whether Mr. Raab’s requested amount constitutes a reasonable fee. (ECF No. 21). I
have considered those filings, and no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016).
For the reasons set forth below, Mr. Raab’s motion for attorney’s fees is GRANTED.
In this case, according to an affirmation submitted by Mr. Raab’s co-counsel, Charles E.
Binder, Esq., Ms. Garback was awarded past due benefits, twenty-five percent of which,
$15,715.00, was withheld to pay attorneys’ fees in an amount approved by this Court. (ECF No.
19-6). Mr. Raab’s motion reflects that counsel only seek a fee award of $8,800.00, despite the
fact that they would be contractually entitled to request a higher fee. Counsel have not received
any attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), because the previously
awarded EAJA fees were completely offset to satisfy Ms. Garback’s pre-existing federal debt.
(ECF No. 19-1).
The SSA 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, counsel and Ms. Garback entered into a contingent fee agreement, by which Ms.
Garback agreed to pay counsel twenty-five percent of all retroactive benefits to which she might
become entitled. (ECF No. 19-3). Ms. Garback submitted an itemized report documenting the
25.70 hours counsel expended before this Court in her case. (ECF No. 19-5). Three attorneys
billed time to the case, all of whom have at least twenty years of relevant legal experience. (ECF
No. 19-1). Dividing the requested fee of $8,800.00 by the 25.70 hours billed results in an
average hourly rate of $342.41, which is well within, and even on the lower end, of the hourly
rate that is presumptively reasonable for attorneys of their experience level pursuant to the

Melissa Renee Garback v. Commissioner, Social Security Administration;
Civil No. SAG-15-145
May 15, 2017
Page 2
guidelines appended to the Local Rules of this Court.1 Courts in the Fourth Circuit have
approved contingency fee agreements that produce much higher hourly rates in successful Social
Security appeals. See, e.g., Melvin v. Colvin, No. 5:10-CV-160-FL, 2013 WL 3340490, at *2
(E.D.N.C. July 2, 2013) (approving contingency fee agreement with hourly rate of $1,043.70);
Claypool v. Barnhart, 294 F. Supp. 2d 829, 833 (S.D.W. Va. 2003) (approving contingency fee
agreement with hourly rate of $1,433.12); Lehman v. Colvin, Civil No. SAG-12-2160, (D. Md.
July 7, 2016) (unpublished) (approving contingency fee agreement with hourly rate of
$1,028.14). Thus, there is no question that the requested fee in this case is reasonable and should
be approved.
For the reasons set forth herein, Mr. Raab’s motion for attorneyss fees (ECF No. 19) will
be GRANTED for $8,800.00. 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.

An

Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

1

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. 2016). 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.