McIver v. Colvin

Filing 38

MEMORANDUM AND ORDER granting Lawrence P. Demuth's 36 Amended Motion for Attorney Fees. Signed by Magistrate Judge Beth P. Gesner on 3/26/2019. (dass, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
BETH P. GESNER
CHIEF UNITED STATES MAGISTRATE JUDGE
[e-mail]

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

March 26, 2019
Lawrence P. Demuth, Esq.
Mignini, Raab & Demuth, LLP
429 S. Main St.
Bel Air, MD 21014

Amy C. Rigney, Esq.
Social Security Administration
6401 Security Blvd., Rm. 617
Baltimore, MD 21235

Theodore A. Melanson, Esq.
Mignini, Raab & Demuth, LLP
606 Baltimore Ave., Ste. 100
Towson, MD 21204
Subject:

Ricky M. v. Commissioner, Social Security Administration1
Civil No.: BPG-16-2725

Dear Counsel:
Currently pending is Lawrence P. Demuth’s Amended Motion for Attorney’s Fees
(“Motion”) pursuant to the Social Security Act (“Act”), 42 U.S.C. § 406(b), which seeks fees for
counsel’s representation of plaintiff before this court. (ECF No. 36). In response, defendant
takes no position on plaintiff’s Motion, but requests that the court consider whether Mr.
Demuth’s requested amount constitutes a reasonable fee. (ECF No. 37). I have reviewed the
pleadings and the record in this case and find that no hearing is necessary. Loc. R. 105.6. For
the reasons noted below, Mr. Demuth’s Motion is GRANTED.
On March 19, 2018, this court awarded Mr. Demuth $5,148.80 for 26.00 hours worked
on plaintiff’s case in federal court, pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. (ECF Nos. 32-1, 34). Plaintiff was subsequently awarded $28,962.00 in past-due
benefits. (ECF No. 36). The Social Security Administration (“SSA”) withheld twenty-five
percent of plaintiff’s past-due benefits, amounting to $7,240.50. Id. On February 26, 2019, Mr.
Demuth filed an Amended Motion for Attorney’s Fees, seeking attorney’s fees in the amount of
$7,240.50, less $5,905.00 already paid in administrative fees, for a total of $1,335.50. Id. As the
$5,148.80 EAJA award was garnished from plaintiff and not collected by Mr. Demuth, any
award of attorney’s fees need not be reduced by the EAJA amount. (ECF No. 36); see Gisbrecht
v. Barnhart, 535 U.S. 789, 796 (2002); Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 135 (4th
Cir. 2009).
“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.” Dewain S. v. Comm’r of
Soc. Sec. Admin., Civil No. SAG-17-716, 2019 U.S. Dist. LEXIS 5281 at *2 (D. Md. June 28,
1

Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not
reserved to the Commissioner of Social Security.

McIver v. Commissioner, Social Security Administration
Civil No.: BPG-16-2725
March 26, 2019
Page 2
2017 (citing 42 U.S.C. § 406(b)). “Although contingent fee agreements are the ‘primary means
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.’” Id. (quoting
Gisbrecht, 535 U.S. at 807). “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 achieved.’” Id.
(quoting Gisbrecht, 535 U.S. at 808)). “Importantly, the Supreme Court acknowledged that a
contingent fee agreement would not result in a reasonable fee if the fee constituted a ‘windfall’ to
the attorney.” Id.
Here, Mr. Demuth and plaintiff entered into a contingent fee arrangement and plaintiff
agreed that, if his claim was allowed, “the fee for services rendered in this case will be TwentyFive Percent (25%) of all retroactive benefits” to which plaintiff may become entitled. (ECF No.
32-5). In his previous Motion for Attorney’s Fees Pursuant to the EJEA (ECF No. 32), Mr.
Demuth submitted an itemized report documenting the 26.00 billed hours2 he expended before
this court in plaintiff’s case. (ECF No. 32-7). If the court awards Mr. Demuth the full amount of
fees requested, his fee for representation before this court will effectively total $278.48 per hour.
Accordingly, Mr. Demuth must establish that an effective rate of $278.48 per hour is reasonable
for the services he rendered. See Gisbrecht, 535 U.S. at 807.
This effective rate is less than Mr. Demuth’s typical hourly billing rate of $350. (ECF
No. 32-6 at 2). It is also squarely within the range of hourly rates that are presumptively
reasonable for attorneys of his experience level pursuant to the fee guidelines appended to the
Local Rules of this court.3 “Courts in the Fourth Circuit have approved contingency fee
agreements that produce much higher hourly rates in successful Social Security appeals.” Terri
H. v. Comm’r, Soc. Sec. Admin, Civil No. SAG-16-3106, 2019 U.S. Dist. LEXIS 17095 at *3–4
(D. Md. Feb. 4, 2019) (collecting cases). Notably, in Terri H., the court found that an effective
rate of $277.66 per hour was reasonable when the fee was less than the typical hourly billing rate
of $300 and within the range of presumptively reasonable hourly rates. Id. at *3. Similarly,
here, after consideration of factors such as “the overall complexity of the case, the lawyering
skills necessary to handle it effectively, the risks involved, and the significance of the result
achieved in district court,” (ECF No. 37 at 2 (citing Mudd v. Barnhart, 418 F.3d 424, 428 (4th
Cir. 2005)), I find that the requested fee is reasonable and should be approved.
For the reasons noted above, Mr. Demuth’s Motion (ECF No. 36) is GRANTED and Mr.
Demuth is awarded attorney’s fees totaling $1,335.50.

The report documented a total of 29.10 hours, 3.10 of which were marked as “NO CHARGE.” Id.
“Although they do not govern Social Security cases, the Local Rules prescribe guidelines for determining
attorney’s fees in certain cases, which are instructive in evaluating the reasonableness of the effective hourly rate in
this case.” Dewain S., 2019 U.S. Dist. LEXIS 5281 at *3 n.2 (citing Loc. R. App. B (D. Md. 2018)). Mr. Demuth
has now been practicing for fourteen years (ECF No. 32-6 at 2) and presumptively reasonable hourly rate for
attorneys admitted to the bar for nine (9) to fourteen (14) years is $225–350. Loc. R. App. B (D. Md. 2018).
2
3

McIver v. Commissioner, Social Security Administration
Civil No.: BPG-16-2725
March 26, 2019
Page 3
Despite the informal nature of this letter, it will constitute an Order of the court and will
be docketed accordingly. An implementing order follows.

Very truly yours,
/s/
Beth P. Gesner
Chief United States Magistrate Judge