Harmon v Commissioner of Social Security
Filing
39
OPINION AND ORDER granting 37 Motion for an award of fees and costs under the Equal Access to Justice Act. The Court ORDERS the plaintiff is awarded $3,015.50 in attorney fees. Signed by Judge Robert L Miller, Jr on 7/25/19. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TINA L. HARMON,
PLAINTIFF
VS.
ANDREW SAUL,1 COMMISSIONER OF
SOCIAL SECURITY,
DEFENDANT
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CAUSE NO. 3:18-CV-482 RLM-MGG
OPINION and ORDER
Tina Harmon moves for attorney fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412, following the court's entry of final judgment remanding
the case to the Commissioner of Social Security for further proceedings. Ms.
Harmon requests an award of fees in the amount of $3,015.50. The
Commissioner doesn't object to her request.
The EAJA permits recovery of attorney fees based on “prevailing market
rates,” but not in excess of $125 per hour “unless the court determines that an
increase in the cost of living or a special factor, such as the limited availability
of qualified attorneys for the proceedings involved, justifies a higher fee.” 28
U.S.C. § 2412(d)(2)(A). Ms. Harmon requests fees for her attorney at the rate of
Andrew Saul was automatically substituted as the defendant in this case pursuant to
Federal Rule of Civil Procedure 25(d) when he became the Commissioner of Social
Security.
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$185 per hour for work performed on her case and asserts that an hourly fee
greater than $125.00 for counsel is warranted based a rise in the cost of living.
In accordance with the Act, Ms. Harmon submitted an itemized statement
from her attorney showing “the actual time expended and the rate at which fees
and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B). Counsel explains
that the hourly rates for work performed in 2018 and 2019 are based on the cost
of living adjustments allowed by statute when employing the Consumer Price
Index-All Items Index obtained from the Bureau of Labor Statistics.
The court finds that “given the passage of time since the establishment of
the hourly rate, a cost-of-living adjustment is warranted,” and counsel’s use of
the Consumer Price Index to calculate an appropriate inflation adjustment is
reasonable. Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008); see also
Williams v. Astrue, No. 11 C 2053, 2013 WL 250795, at *2 (N.D. Ill. Jan. 23,
2013) (“Courts in this district have allowed claimants to use the Consumer Price
Index to adjust hourly attorneys’ rates to account for cost of living increases in
EAJA cases.”). As noted, the Commissioner doesn’t object to the hourly rates
charged or the amount of fees requested by Ms. Harmon.
Based on the foregoing, the court GRANTS the motion for an award of fees
and costs under the Equal Access to Justice Act [Doc. No. 37] and ORDERS as
follows:
The plaintiff is awarded $3,015.50 in attorney fees under the EAJA, 28
U.S.C. § 2412. This award will satisfy all of Ms. Harmon’s claims for attorney
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fees under the EAJA.
Any fees paid belong to Ms. Harmon and can be offset to satisfy any preexisting debt that she owes the United States. See Astrue v. Ratliff, 560 U.S. 586
(2010). After the court enters this award, if counsel for the Commissioner can
verify that Ms. Harmon owes no pre-existing debt subject to offset, the
Commissioner will direct that the award be made payable to Ms. Harmon’s
attorney.
SO ORDERED.
ENTERED:
July 25, 2019
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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