Given v. Berryhill
Filing
55
MEMORANDUM OPINION. Signed by Magistrate Judge Deborah L. Boardman on 9/24/2020. (ols, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
DEBORAH L. BOARDMAN
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-7810
Fax: (410) 962-2577
MDD_DLBChambers@mdd.uscourts.gov
September 24, 2020
LETTER TO COUNSEL
RE:
Terry G. v. Saul1
Civil No. DLB-17-3383
Dear Counsel:
Pending before the Court is plaintiff’s motion for attorney’s fees filed by counsel Theodore
A. Melanson, Esq., pursuant to the Social Security Act (“Act”), 42 U.S.C. § 406(b). ECF No. 51.
In response, the Commissioner asked the Court to consider whether Mr. Sindler’s motion for
attorney’s fees was timely filed and whether the fee requested is reasonable under the Act. ECF
No. 54. 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.
Procedural History
On November 14, 2017, plaintiff filed a complaint in this Court. ECF No. 1. On November
20, 2018, the Court entered an order granting a consent motion to remand the case. ECF No. 21.
On January 4, 2019, the Court awarded Mr. Melanson $4,000.00 in fees for the 20.50 hours he
worked on plaintiff’s case in federal court, pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412. ECF No. 28. On June 17, 2019, the Social Security Administration (“SSA”)
issued a favorable decision, see ECF No. 29-1, and the SSA subsequently issued a Notice of Award
dated October 28, 2019, see ECF No. 29-2. On October 30, 2019, Mr. Melanson timely filed his
first motion for attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 29. On November 19,
2019, Mr. Melanson filed an amended motion for attorney’s fees, ECF No. 30, and attached a
Notice of Award dated November 10, 2019, ECF No. 30-2 (“This letter replaces our previous letter
dated October 28, 2019.”). The Commissioner filed a series of motions for extensions of time to
respond. See ECF Nos. 31, 33, 34, 36. Before the Commissioner filed a response, Mr. Melanson
1
When this proceeding began, Carolyn Colvin was the Acting Commissioner of the Social Security
Administration (“Commissioner”). On June 17, 2019, Andrew Saul was sworn in as Commissioner and is
therefore automatically substituted as a party. See Fed. R. Civ. P. 25(d); 42 U.S.C. § 405(g) (“Any action
instituted in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”).
Terry G. v. Saul
Civil No. DLB-17-3383
September 24, 2020
Page 2
filed another amended motion for attorney’s fees on January 7, 2020, ECF No. 38, and attached
an Auxiliary Notice dated December 16, 2019, ECF No. 38-1. The Commissioner again filed a
series of motions for extensions of time to respond. See ECF Nos. 39, 41, 43, 45. On February
28, 2020, Mr. Melanson filed a third amended motion for attorney’s fees, asserting that the “[t]otal
past due benefits [were] unclear in this case.” ECF No. 47. The Commissioner did not respond.
The Court subsequently issued a series of orders in response to the pandemic, including Standing
Order 2020-07 which suspended all deadlines for 84 days. On May 19, 2020, Mr. Melanson filed
a fourth amended motion for attorney’s fees, ECF No. 48, and attached a Notice of Change of
Benefits dated April 22, 2020, ECF No. 48-2. The Commissioner requested an extension of time
to respond. ECF No. 49. On August 28, 2008, Mr. Melanson filed his fifth and final amended
motion for attorney’s fees. ECF No. 51. Mr. Melanson attached to his final motion for fees the
April 22, 2020 Notice of Change of Benefits, ECF No. 51-1, and a May 23, 2020 Auxiliary Notice
which replaced the December 16, 2019 notice, ECF No. 51-2. The Commissioner requested a
tenth extension since Mr. Melanson filed his first motion for attorney’s fees, ECF No. 52, before
filing his response on September 15, 2020, ECF No. 54.
In his final amended motion, Mr. Melanson seeks $20,505.13 in attorney’s fees. ECF No.
51. This figure represents 25% of the past-due benefits owed to plaintiff and her child. The April
22, 2020 notice shows that plaintiff was awarded $77,716.50 in past-due benefits and that
$19,429.13 was withheld for attorney’s fees, ECF No. 51-1. The May 23, 2020 notice shows that
$1,076.00 was withheld from plaintiff’s auxiliary benefits for attorney’s fees, ECF No. 51-2. Mr.
Melanson has agreed to reimburse Plaintiff for EAJA fees previously received. ECF No. 51; 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).
Timeliness
Pursuant to the Court’s Local Rules, a motion for attorney’s fees in Social Security cases
“must be filed within thirty (30) days of the date of the Notice of Award letter to the claimant and
the attorney at the conclusion of the Social Security Administration’s past-due benefit calculation.”
D. Md. R. 109.2(c). The Commissioner points out that Mr. Melanson did not file the May 23,
2020 notice with the Court until August 28, 2020. ECF No. 54 at 3. The Court will not deny the
fee petition based on the late filing of the May 23, 2020 notice for two reasons. First, dismissing
the fee petition based on the May 23, 2020 notice would be nonsensical. The May 23, 2020 notice
replaced the December 16, 2020 notice, which Mr. Melanson did timely file with the Court. The
late-filed May 23, 2020 replacement notice actually reduces the amount of fees that Mr. Melanson
was eligible to receive under the timely-filed December 16, 2020 notice. Compare ECF No. 51-2
(showing $1,076.00 withheld for attorney’s fees), with ECF No. 38-1 (showing $9,712.00 withheld
for attorney’s fees). Therefore, if the Court disregarded the May 23, 2020 notice, attorney’s fees
would be calculated based on the timely-filed December 16, 2020 notice, which could have
resulted in a petition for more fees than are actually available. Second, the one-month delay fell
during the early months of the pandemic when many deadlines were suspended.
Terry G. v. Saul
Civil No. DLB-17-3383
September 24, 2020
Page 3
Reasonableness
The Court next must determine the reasonableness of Mr. Melanson’s requested fee. 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. 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. (quoting Rodriquez v. Bowen, 865 F.2d 739, 746-47 (6th Cir. 1989)). 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.
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 she
might become entitled. ECF No. 22-3. In his previous motion for attorney’s fees pursuant to the
EAJA, Mr. Melanson submitted itemized reports documenting 20.50 chargeable hours he worked
on plaintiff’s case. ECF No. 22-7 (listing a total of 21.10 hours, 0.60 of which were spent on
clerical and administrative tasks marked “NO CHARGE”). If Mr. Melanson receives the full
amount of fees he requests, his fee for representation before the Court will effectively total
$1,000.25 per hour. Therefore, Mr. Melanson must show that an effective rate of $1,000.25 per
hour is reasonable for the services he rendered. See Gisbrecht, 535 U.S. at 807.
Mr. Melanson’s typical hourly billing rate is $300.00. ECF No. 22-6 ¶ 6. This is 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. 2 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 (E.D.N.C.
July 2, 2013) (approving contingency fee agreement with hourly rate of $1,043.92); 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. Comm’r, Soc. Sec. Admin., Civil No. SAG-10-2160 (D.
Md. July 7, 2016) (unpublished) (approving contingency fee agreement with hourly rate of
$1,028.14). This Court has routinely approved a higher hourly rate for Mr. Melanson. See, e.g.,
James P. v. Comm’r, Soc. Sec. Admin., No. DLB-17-518 (D. Md. Feb. 13, 2020); Debra J. v.
Comm’r, Soc. Sec. Admin., Civil No. DLB-17-2904 (D. Md. Feb. 5, 2020). Thus, the requested
fee in this case is reasonable and should be approved.
2
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’x B (D. Md. 2018). Currently, Mr. Melanson has over five years of
experience, ECF No. 22-6 ¶ 5, and the presumptively reasonable hourly rate for attorneys admitted to the
bar for five to eight years is between $165.00 and $300.00, Loc. R. App. B (D. Md. 201 8).
Terry G. v. Saul
Civil No. DLB-17-3383
September 24, 2020
Page 4
For the reasons set forth herein, this Court GRANTS the attorney’s fee request. ECF No.
51. This Court will award Mr. Melanson attorney’s fees totaling $20,505.13. Mr. Melanson is
directed to reimburse to Plaintiff the fees he received pursuant to the EAJA.
Despite the informal nature of this letter, it should be flagged as an opinion.
implementing order follows.
Sincerely yours,
/s/
Deborah L. Boardman
United States Magistrate Judge
An
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