Harville v. Commissioner of Social Security

Filing 24

MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 1/2/2015; re 20 Motion for Attorney Fees.cc:counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
PLAINTIFF

LENA C. HARVILLE
v.

NO. 3:13-CV-4176-CRS

CAROLYN W. COLVIN,
Acting Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
This matter is before the court on the motion of the plaintiff, Lena C. Harville, for
attorney fees pursuant to the Equal Access to Justice Act (“EAJA”) in connection with her
counsel’s successful appeal from the denial of social security benefits. (DN 20).
The Commissioner does not dispute Harville’s request for an award of attorney fees
under the EAJA or the number of hours (32.80) for which Harville’s counsel seeks a fee. The
Commissioner does object to the hourly rate of $186.91 which Harville’s counsel proposes as a
reasonable rate for his services in this case.
The Commissioner requests that the court award a fee at an hourly rate of $125.00 per
hour. 28 U.S.C. § 2412(d)(2)(A) states that “The amount of fees awarded under this subsection
shall be based upon prevailing market rates for the kind and quality of the services furnished,
except that…attorney fees shall not be awarded 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.” Harville bears the
burden of justifying an hourly rate in excess of $125.00 per hour. Bryant v. Commissioner of
Social Security, 578 F.3d 443, 450 (6th Cir. 2009). Harville 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 v. Stenson, 465 U.S. 886,
895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
Harville has failed to establish the prevailing market rate – counsel having voluntarily
agreed to represent Harville in this court, the prevailing market rate is “that rate at which lawyers
of comparable skill and experience can reasonably expect to command within the venue of the
court of record, rather than foreign counsel’s typical charge for work performed within a
geographical area wherein he maintains his office and/or normally practices, at least where the
lawyer’s reasonable “home” rate exceeds the reasonable ‘local’ charge.” Adcock-Ladd v.
Secretary of the Treasury, 227 F.3d 343, 350 (6th Cir. 2000), quoting Hudson v. Reno, 130 F.3d
1193, 1208 (6th Cir. 1997), cert denied, 525 U.S. 822, 119 S.Ct. 64, 142 L.Ed.2d 50 (1998).
In support of the requested $186.91 per hour, Harville has submitted the affidavit of
Harry J. Binder, senior partner and chief financial officer of the Law Offices of Harry J. Binder
and Charles E. Binder, P.C., a New York law firm. The affidavit discusses the Consumer Price
Index for the New York Metropolitan Area, comparing statistics for 1996 and 2013, and
indicates that the firm’s inherent cost of a case increased no less than 75% from 1996 to 2013.
Binder averred that the firm’s attorneys billed $225.00 per hour in 1996 and billed at the rate of
$450.00 per hour in 2013. Thus Harville offers the case for a higher rate in New York for New
York practitioners. But this begs the question of a reasonable rate for representation of Harville
in this district.
Harville suggests “historical” rates “as high as $168.00 per hour” awarded in the district,
citing to various decisions. DN 22, p. 3. Decisions from the Northern District of Ohio McQuin
v. Colvin and Butler v. Comm’r Soc. Sec.) are of no assistance in discerning a reasonable rate in

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the Western District of Kentucky. In the case of Coulter v. Colvin, 2014 WL 4851769 (W.D.Ky.
Sept. 29, 2014), the court found no historical rate, stating at *3 that it could find no specific
hourly rate deemed “standard” in social security cases in the Western District of Kentucky at
Bowling Green. Instead, the court looked to an environmental law case for which a fee at a rate
of $168.00 per hour was awarded under the EAJA. After receiving a favorable decision on
remand, the court granted counsel for Coulter a fee under § 406(a) at the rate of $145.00 per
hour.
In Turner v. Astrue, 2008 WL 2950063 (E.D.Ky. July 30, 2008), also cited by Harville,
the court awarded a fee at the rate of $125.00 per hour, noting that “Social Security benefit
practice as a whole is not beyond the grasp of a competent practicing attorney and is not
necessarily a practice specialty on the level which might justify fee enhancement,” and
concluding that “plaintiff’s counsel ha[d] not provided specific proof that the reasonable and
customary attorney fee for comparable work in the Southern Division [of the Eastern District of
Kentucky] exceeds $125.00 per hour.” Turner, at *2.
The court finds, as in Turner, supra., that Harville has failed to provide specific
evidence concerning fees charged by local social security practitioners for comparable work in
Louisville. However, we note that in November of 2013, this court awarded a fee at the rate of
$140.00 per hour in Murry v. Colvin, Civil Action No. 3:12CV-56-CRS. (DNs 29, 30, 31). The
plaintiff provided a decision of Judge Edward Johnstone who determined in 2007 that $140.00
per hour was reasonable for experienced Louisville metropolitan area practitioners who
concentrate in social security disability work. Significantly, the Commissioner responded to the
motion for a fee at the rate of $140.00 per hour in the Murry case stating that it had no objection

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to the rate. DN 30, pp. 1-2. The court awarded a fee at the rate of $140.00 per hour in the Murry
case. (DN 31).
While the objection of the Commissioner in the case at bar to the proposed hourly rate of
$186.91 per hour is well taken, she does not suggest that the $125.00 per hour statutory fee
reflects the market rate in this district. The court concludes that a rate of $140.00 per hour which
was shown in Murry, supra to be a reasonable and customary rate for social security practitioners
in the Louisville metropolitan area, and to which the Commissioner had no objection, should be
awarded in this case.
Harville’s counsel seeks an award payable directly to him for services in this case.
Counsel has provided a copy of a Retainer Agreement and Assignment. However, in light of the
United States Supreme Court’s decision in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), the award is
payable to Harville, the prevailing plaintiff. See Ratliff, 130 S.Ct. at 2526 (“The fact that the
statute awards to the prevailing party fees in which her attorney may have a beneficial interest or
a contractual right does not establish that the statute ‘awards’ the fees directly to the attorney.”);
Smith v. Astrue, 2013 WL 1155521 (S.D.Ohio March 20, 2013)(“growing consensus of courts
within the Sixth Circuit that ‘[u]nder Ratliff, the proper course is to award fees directly to
Plaintiff and remain silent as to the direction of those fees.”); Johnson v. Astrue, 2012 WL
1014993 (March 23, 2012)(award to plaintiff). The court will order that the award be made
payable to Harville. The United States has indicated that the Treasury Department may mail a
check to Harville’s counsel.
A separate order will be entered this date in accordance with this opinion.

IT IS SO ORDERED.
January 2, 2015

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