United States District Court, D. Maryland
LETTER TO COUNSEL
Sincerely yours, Stephanie A. Gallagher United States
A. Raab, Esq. has filed a motion for attorneys' fees
pursuant to the Social Security Act, 42 U.S.C. § 406(b),
in conjunction with his representation of Frank Talmo (and
his surviving beneficiaries) before this Court. [ECF No. 29].
In response, the Social Security Administration
(“SSA”) opposed the motion as untimely. [ECF No.
37]. Mr. Raab then filed a reply. [ECF No. 40]. 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
case, according to an affirmation submitted by the
out-of-state attorney performing most of the work on this
case, Charles E. Binder, Esq., Mr. Talmo's surviving
beneficiaries were awarded past due benefits in the total
amount of $133, 931.00. [ECF No. 29-2 ¶ 14]. Twenty-five
percent of that amount would be $33, 482.75. Id. Mr.
Raab's motion reflects that counsel only seek a fee award
of $18, 750.00, 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 Mr. Talmo's pre-existing federal debt. [ECF No.
opposes Mr. Raab's motion, arguing that it was not timely
filed. However, the SSA cites a now-superseded version of
this Court's Local Rules in making its timeliness
argument. [ECF No. 37 at 2]. The current version requires the
attorney to seek fees “within thirty (30) days of the
date of the Notice of Award letter sent to the claimant and
the attorney at the conclusion of the Social Security
Administration's past-due benefit calculation.”
Loc. R. 109.2.c (D. Md. 2016). The revised Local Rule permits
an attorney to receive SSA's calculation of past-due
benefits and withheld fees prior to seeking an award, since
the attorney requires that information to file an appropriate
(and lawful) request. In this case, the paperwork sent to the
Talmos did not include a standard “Notice of Award,
” which includes a backpay calculation and the
calculation of 25% of benefits, which is typically withheld
for a possible award of fees. Instead, in this case, the SSA
withheld only $6000.00, instead of the $33, 482.75 that it
now admits it should have withheld. [ECF No. 29-6]. The
SSA's failure to abide by its standard procedures should
not deprive counsel of an opportunity to recover appropriate
fees. Here, the SSA sent its first correspondence identifying
the amount of back pay and the calculation of 25% of that
amount on August 22, 2017, (ECF No. 29-6), and Mr. Raab filed
his fee petition well within thirty days, on September 5,
2017, (ECF No. 29). Thus, the request was timely.
to the merits of the petition, 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 Mr. Talmo entered into
a contingent fee agreement, by which Mr. Talmo agreed to pay
counsel twenty-five percent of all retroactive benefits to
which he might become entitled. [ECF No. 29-3]. Mr.
Talmo's counsel submitted an itemized report documenting
the 29.0 hours counsel expended before this Court in his
case. [ECF No. 29-5]. Three attorneys billed time to the
case, all of whom have at least twenty years of relevant
legal experience. [ECF No. 21-2]. Dividing the requested fee
of $18, 750.00 by the 29.0 hours billed results in an average
hourly rate of $646.55, which is somewhat above the hourly
rate that is presumptively reasonable for attorneys of their
experience level pursuant to the guidelines appended to the
Local Rules of this Court.However, 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, the requested fee in this
case is reasonable and should be approved.
reasons set forth herein, Mr. Raab's motion for
attorneys' fees, (ECF No. 29), will be GRANTED for $18,
750.00. Despite the informal nature of this letter, it should
be flagged as an opinion. An implementing order follows.
 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
 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 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 ...