Doucette v. SSA

Filing 43

MEMORANDUM ORDER: 1. Plf Daniel Doucette's motion for attorney's fees and costs 33 is GRANTED. 2. Attorney's fees are awarded in amount of $ 8,680.61 to be paid directly to Plf Doucette. 3. Costs in amount of $905.00 shall be payable from the Judgment Fund from U.S. Dept. of Treasury. Signed by Judge Danny C. Reeves on 10/25/2021. (RCB)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 ORDER

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Plaintiff Daniel L. Doucette, a former client of ex-attorney Eric Conn, 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] Doucette’s attorney, Evan Smith, sought $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. [Id.] The Court
awarded $7,315.00, based on an hourly rate of $150.00 to be paid directly to Doucette, and
costs in the amount of $905.00. [Record No. 35]
Doucette appealed the award of attorney’s fees to the United States Court of Appeals
for the Sixth Circuit, arguing that the award was unreasonable because it was below the market
rate. [Record No. 36] The Sixth Circuit agreed with Smith, vacated the fee award, and
remanded the matter “to determine the appropriate hourly rate given the market range
established by the plaintiffs.” [Record No. 40, p. 10] The court explained that evidence
established “a range of comparable market rates between $205 and $500.” [Id. at 8.]
Courts must determine reasonable attorney’s fees under the EAJA. Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002). This Court utilizes the lodestar method, multiplying the
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number of hours reasonably expended by a reasonable hourly rate, in determining the amount
of reasonable attorney’s fees. Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d
686, 702 (6th Cir. 2016) (citation omitted). There is a presumptive statutory cap of $125.00
per hour unless the plaintiff can demonstrate a reason to justify a higher fee award, such as an
increased cost of living or the limited availability of qualified attorneys to handle the matter.
28 U.S.C. § 2412(d)(2)(A). To exceed the statutory cap, the plaintiff must show that the
“prevailing market rate” in the local community exceeds the statutory cap and “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 v. Commissioner of Social Sec., 578
F.3d 443, 450 (6th Cir. 2009).
Attorney Smith submitted two declarations from other attorneys attesting to the fact
that the prevailing market rate is at least $205.00 an hour and that there are a limited number
of attorneys willing to take Social Security appeals because of the lack of financial incentive
to do so. [Record Nos. 33-3, 33-4] Smith also provided that, as of February 2020, the
increased cost of living according to the Bureau of Labor and Statistics, CPI Inflation
Calculator is $207.67 in February 2020 dollars. [Record No. 33, p. 12]
Based on the Sixth Circuit’s opinion and the evidence provided by attorney Smith, the
Court will grant attorney’s fees in the amount requested. The Court will award $8,680.61 in

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attorney’s fees at an hourly rate of $207.67 for 41.80 hours of work and expenses in the amount
of $905.00.1
Accordingly, it is hereby
ORDERED as follows:
1.

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

is GRANTED.
2.

Attorney’s fees are awarded in the amount of $ 8,680.61 to be paid directly to

Plaintiff Doucette.
3.

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

the United States Department of Treasury.
Dated: October 25, 2021.

  As noted in the Court’s previous Memorandum Opinion and Order, a fee award under the
EAJA must be paid directly to the plaintiff, not the plaintiff’s 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 that predates the actual award is void.” Cox v. Astrue, 917 F.
Supp. 2d 659, 662 (E.D. Ky. 2013). Accordingly, the fee award will be paid directly to
Doucette.
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