Cooper v. Berryhill

Filing 25

MEMORANDUM to Counsel. Signed by Magistrate Judge Stephanie A Gallagher on 5/10/2019. (bmhs, 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 10, 2019
LETTER TO COUNSEL

RE:

Craig C. v. Commissioner, Social Security Administration;
Civil No. SAG-17-2782

Dear Counsel:
Theodore A. Melanson, Esq. has filed a line requesting attorney’s fees pursuant to the
Social Security Act (“Act”), 42 U.S.C. § 406(b), in conjunction with his representation of Plaintiff
before this Court. ECF 23. In response, the Social Security Administration (“SSA”) asked this
Court to consider whether Mr. Melanson’s requested amount constitutes a reasonable fee. ECF
24. Mr. Melanson did not file a reply. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018).
For the reasons set forth below, Mr. Melanson’s motion for attorney’s fees is GRANTED IN PART
and DENIED IN PART.
On July 6, 2018, this Court awarded Mr. Melanson $3,000.00 for 15.00 hours worked on
Plaintiff’s case in federal court, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. ECF 19, 22. Plaintiff subsequently received an Award Notice, in which he was awarded
$77,595.50 in past due benefits. ECF 23-2. The SSA withheld twenty-five percent of Plaintiff’s
past due benefits, amounting to $19,398.87. Id. at 2. On April 12, 2019, Mr. Melanson filed a
Line for Attorney’s Fees, seeking $19,398.87. ECF 23. Mr. Melanson agrees to reimburse
Plaintiff the $3,000 he received in EAJA fees. 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 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 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, 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. 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. Courts may require the attorney to provide a record of hours spent working on
the case, and the attorney’s typical hourly billing charge. Id.

Craig C. v. Commissioner, Social Security Administration;
Civil No. SAG-17-2782
May 10, 2019
Page 2
Here, Mr. Melanson and Plaintiff entered into a contingent fee agreement, by which
Plaintiff agreed to pay Mr. Melanson twenty-five percent of all retroactive benefits to which he
might become entitled. ECF 19-3. In his previous motion for attorney’s fees pursuant to the EAJA,
Mr. Melanson submitted an itemized report documenting the 15.00 billed hours he expended
before this Court in Plaintiff’s case. ECF 19-7 (listing a total of 15.85 hours, with 0.85 marked
“NO CHARGE” for clerical and administrative tasks). If Mr. Melanson receives the full amount
of fees he requests, his fee for representation before this Court will effectively total $1,293.26 per
hour. Mr. Melanson must therefore show that an effective rate of $1,293.26 per hour is reasonable
for the services he rendered. See Gisbrecht, 535 U.S. at 807.
Notably, Mr. Melanson’s requested fee results in more than five times the top hourly rate
that is presumptively reasonable for attorneys of his experience level pursuant to the fee guidelines
appended to the Local Rules of this Court,1 and more than four times his stated hourly billing
charge of $300, ECF 19-6. Although it is customary in Social Security cases for courts to approve
significantly higher rates, Mr. Melanson’s requested rate exceeds the typical rates awarded by
courts in the Fourth Circuit for attorney’s fees in successful Social Security appeals, even to
attorneys with more experience. See, e.g., Melvin v. Colvin, No. 5:10-CV-160-FL, 2013 U.S. Dist.
LEXIS 92832 (E.D.N.C. July 2, 2013) (approving contingency fee agreement with hourly rate of
$1,043.92); Lehman v. Comm’r, Soc. Sec. Admin., Civil No. SAG-10-2160, 2016 U.S. Dist. LEXIS
186022 (D. Md. July 7, 2016) (approving contingency fee agreement with hourly rate of
$1,028.14). Hourly rates exceeding $1,000 are the exception, not the rule. While this Court notes
Mr. Melanson’s effective performance and the substantial past-due benefit award to his client, Mr.
Melanson’s request for $19,398.87 for 15.00 hours in this case would result in a windfall. Instead,
this Court finds that an award of $11,250.00, amounting to an hourly rate of $750.00—more than
triple the top hourly rate for an attorney of Mr. Melanson’s experience, would adequately
compensate Mr. Melanson for the time that he spent on this case in this Court. See Hunter v.
Comm’r, Soc. Sec. Admin., Civil No. SAG-15-3758, 2017 U.S. Dist. LEXIS 221544 (D. Md. Nov.
16, 2017) (approving contingency fee agreement with hourly rate of $1,140.41, while noting that
the requested rate was “slightly more than triple the top hourly rate” for an attorney with eleven
years of experience).
For the reasons set forth herein, this Court GRANTS IN PART and DENIES IN PART Mr.
Melanson’s request for attorney’s fees, ECF 23. This Court will award Mr. Melanson attorney’s
fees totaling $11,250.00, and Mr. Melanson should reimburse to Plaintiff the $3,000 he received
pursuant to the EAJA.

1

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. See Loc. R. App. B (D. Md. 2018). For attorneys admitted to the bar for a period of less
than five (5) years, like Mr. Melanson, ECF 19-6, the presumptively reasonable hourly rate is between
$150.00 and $225.00 per hour. Loc. R. App. B (D. Md. 2018).

Craig C. v. Commissioner, Social Security Administration;
Civil No. SAG-17-2782
May 10, 2019
Page 3
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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