Doucette v. SSA

Filing 35

MEMORANDUM OPINION & ORDER: 1. Pla Daniel Doucette's motion for attorney's fees and costs (Record No. 33 ) is GRANTED, in part, and DENIED, in part. 2. Attorney's fees will be awarded in amount of $6,270.00 to be paid directly to Pla Doucette. 3. Costs in amount of $905.00 shall be payable from Judgment Fund administered by US Department of Treasury. Signed by Judge Danny C. Reeves on 4/7/2020. (TDA) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
DANIEL L. DOUCETTE,
Plaintiff,
V.
ANDREW SAUL, Commissioner of
Social Security,
Defendant.

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Civil Action No. 7: 16-075-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiff Daniel Doucette, previously a client of former attorney Eric Conn, has filed a
motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d)(1)(A). [Record No. 33] This Court remanded this case under sentence four of 42
U.S.C § 405(g) and directed the reinstatement of benefits pending further administrative
proceedings. [Record No. 31] However, this case was not remanded until after Doucette’s
attorney, Evan Smith, submitted a merits brief to the United States Court of Appeals for the
Sixth Circuit. Smith seeks $8,680.61 in fees at an hourly rate of $207.67 for 41.80 hours of
work and expenses in the amount of $905.00. The Commissioner filed a response and
explained it does not object to the amount of attorney’s fees and filing fees payable as costs
from the Judgment Fund administered by the United States Department of Treasury. [Record
No. 34]
While the Court will grant attorney’s fees, it does not agree with the parties that an
award of $8,680.61 at an hourly rate of $207.67 is reasonable. Even though Doucette is being
awarded attorney’s fees under the EAJA, the district court has a duty to ensure that the amount
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of fees under the EAJA is “reasonable.” Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983).
Reasonable fees are those that are “in line with those prevailing in the community for similar
services . . . of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465
U.S. 886, 895 n. 11 (1984). The Court uses the lodestar method to calculate reasonable
attorney’s fees under the EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). The
lodestar method multiplies the number of hours reasonably expended by a reasonable hourly
rate. Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d 686, 702 (6th Cir. 2016)
(citing Hensley, 461 U.S. at 433).
The EAJA has a presumed statutory cap of $125.00 per hour.

28 U.S.C. §

2412(d)(2)(A). The statutory cap applies “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.” Id. The plaintiff is required to show that the
“prevailing market rate” in the local legal community exceeds the statutory cap. Bryant v.
Commissioner of Social Sec., 578 F.3d 443, 450 (6th Cir. 2009). Once the Court determines
the prevailing market rate based on the evidence in the record, the Court must determine
whether increases in the cost of living justify an award of attorney’s fees over the statutory
maximum. Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 200 (6th Cir. 1992). The
plaintiff must “produce satisfactory evidence—in addition to the attorney’s own affidavits—
that the requested rates are in line with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and reputation.” Bryant, 578 F.3d at
450 (quoting Blum, 465 U.S. at 895 n.11, 898).
Smith has submitted declarations from two other attorneys attesting that the prevailing
market rate is at least $205.00 an hour and that there are a limited number of attorneys willing
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to take Social Security appeals. [Record Nos. 33-3, 33-4] The affidavit submitted by attorney
Joe Childers states that he is familiar with the type of litigation and issues in Social Security
appeals, but he does not take those cases due to the lack of economic incentives to do so.
Further, the affidavit from attorney Thomas Moak also asserts that he no longer takes Social
Security appeals, but contends the private market rate for these cases is at least $205.00 an
hour. [Record No. 33-4] Smith also provided information about rates in Michigan. However,
“[t]he relevant community, although a somewhat fluid concept, has been defined as the same
metropolitan area as the one in which the case was brought.” Kalar v. Astrue, No. 10-428JBC, 2012 U.S. Dist. LEXIS 97559, at *2 (E.D. Ky. July 13, 2012) (citing Chipman v. Sec’y
of Health & Hum. Servs., 782 F.2d 545, 547 (6th Cir. 1986)). The local prevailing rate is the
one that governs the analysis, not out-of-state comparisons. See Adcock-Ladd v. Sec’y of
Treasury, 227 F.3d 343 (6th Cir. 2000). Thus, information about the prevailing market rate in
Michigan is irrelevant to the analysis. Smith also provided information about fees for other
types of cases within the jurisdiction. However, the Court looks at fees for the kinds of services
furnished, not for fees for all types of cases. See Carson v. Colvin, No. 13-94-GFVT, 2015
U.S. Dist. LEXIS 118866, at *6 (E.D. Ky. Sept. 8, 2015). Finally, Smith provides that the
increased cost of living according to the Bureau of Labor and Statistics, CPI Inflation
Calculator is $207.67 in February 2020 dollars.
Judges regularly award the market rate of $125.00 per hour in the Eastern District of
Kentucky in most social security matters. See, e.g., id. at *7 (collecting cases). In Taylor v.
Berryhill, United States District Judge Joseph Hood declined to exceed the statutory maximum
for attorney Smith in a Conn-related remand case.

No. 18-cv-071-JMH, 2019 U.S. Dist.

LEXIS 115939, at *6-8 (E.D. Ky. July 12, 2019). He determined that the work done did not
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involve a complex legal analysis or require substantial legal work to receive a favorable
outcome. Id. at *7. Further, as Judge Hood explained, “the weight of authority in the Eastern
District of Kentucky supports using the $125.00 statutory rate in most Social Security cases.”
Id. However, Judge Hood did note that “some of the attorneys representing Conn clients may
be entitled to an increase in the statutory maximum fee based on the complexity of the actions
and other relevant factors.” Id. at 9.
This case differs from Taylor v. Berryhill and warrants a slight upward adjustment
above the statutory cap for attorney’s fees. This case did involve more complex legal questions
and substantive legal work than Taylor.

Here, attorney Smith spent time preparing for an

appeal before the United States Court of Appeals for the Sixth Circuit before the Commissioner
agreed to reverse and remand under Hicks v Commissioner, 909 F.3d 786 (6th Cir. 2018).
Attorney Smith also includes a list of cases where he was awarded fees above the statutory
maximum, including another case captioned Taylor v. Berryhill, No. 16-cv-195-DLB, 2017
U.S. Dist. LEXIS 88234 (E.D. Ky. June 1, 2017), where he received $195.00 per hour. The
Court believes an upward adjustment from $125.00 an hour to $150.00 an hour accurately
reflects the complexity of the legal issues in this case and the work completed.
The Court agrees that the hours spent on this case are reasonable. Multiplying 41.8
hours by a rate of $150.00 per hour, Doucette is entitled to $6,270.00 in attorney’s fees.
Additionally, the Court agrees that the filing fees totaling $905.00 should be paid as costs from
the Judgment Fund administered by the Department of the Treasury.
The Commissioner correctly notes that a fee award under the EAJA must be paid
directly to the plaintiff—not to his attorney. Astrue v. Ratliff, 560 U.S. 586, 596 (2010); Kerr
v. Comm’r of Soc. Sec., 874 F.3d 926, 931 (6th Cir. 2017). An “assignment of an EAJA award
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that predates the actual award is void.” Cox v. Astrue, 917 F. Supp. 2d 659, 662 (E.D. Ky.
2013). Thus, the fee award shall be paid directly to Doucette. Accordingly, it is hereby
ORDERED as follows:
1.

Plaintiff Daniel Doucette’s motion for attorney’s fees and costs [Record No. 33]

is GRANTED, in part, and DENIED, in part.
2.

Attorney’s fees will be awarded in the amount of $6,270.00 to be paid directly

to Plaintiff Doucette.
3.

Costs in the amount of $905.00 shall be payable from the Judgment Fund

administered by the United States Department of Treasury.
Dated: April 7, 2020.

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