Dubois v. Social Security Administration
Filing
33
ORDER that the 30 Motion for Attorney Fees is GRANTED IN PART, in that theCommissioner is ordered to pay attorneys fees in the amount of $5,775.00 (33 hours at $175.00 per hour) to Kellie M. Dubois. Signed by Magistrate Judge Daniel E. Knowles, III on 11/18/14. (plh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLIE M. DUBOIS
CIVIL ACTION
VERSUS
NUMBER 13-2438
SOCIAL SECURITY ADMINISTRATION
SECTION "E" (3)
ORDER
Before the Court is a Petition for Attorney’s Fees [Doc. #30] filed by plaintiff, Kellie M.
Dubois, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The motion is
opposed. For the reasons stated below, it is ORDERED that the motion be GRANTED IN PART,
in that the Commissioner is ordered to pay attorney's fees in the amount of $5,775.00 (33 hours at
$175.00 per hour).1
I.
The EAJA and Number of Hours Claimed
The EAJA provides that a court shall award attorney's fees and costs to a prevailing party
in a civil action brought against the United States unless the court finds that the position of the
government was substantially justified or that special circumstances make an award unjust. 28
U.S.C. § 2412(d)(1)(A). A party who obtains a remand of a social security appeal pursuant to the
fourth sentence of Section 405(g) – such as occurred here – qualifies as a prevailing party for
purposes of fees under the EAJA. Breaux v. U.S.D.H.H.S., 20 F.3d 1324 (5th Cir. 1994). The
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Plaintiff does not seek costs in her petition.
prevailing party is entitled to fees unless the government meets its burden of showing that its
position was substantially justified or that special circumstances make an award unjust. Baker v.
Bowen, 839 F.2d 1075, 1080 (5th Cir. 1988).
Plaintiff asks the Court for an award of $5,775.00 in attorney’s fees under the EAJA for 33
hours of work performed at a rate of $175.00 per hour. The government opposes only two facets
of plaintiff’s claim: (1) the $175.00/hour rate charged by counsel for plaintiff; and (2) that the fees
be paid directly to counsel for plaintiff.
II.
Hourly Rate
In the petition, plaintiff's attorney seeks to recover fees at an hourly rate of $175.00. For the
following reasons, the Court finds that such an hourly rate is appropriate under the EAJA in this
district. Louisiana federal courts have noted that the EAJA provides in relevant part that the amount
of fees awarded
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. . . justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A).
The EAJA “vests the district courts with discretion to arrive at a reasonable rate for attorneys'
fees based on cost-of-living adjustments and other factors.” Yoes v. Barnhart, 467 F.3d 426, 426
(5th Cir. 2006) (citation omitted). Although courts are clearly authorized to figure cost of living
increases into the hourly rate, courts within this district and within this state have often declined to
award EAJA fees in excess of $125 per hour. See e.g., Passaro v. Barnhart, No. 04-1300, 2005 WL
2
1432368 (E.D. La. Mar. 27, 2005) (Barbier, J.) (finding that $125 fee satisfies the purposes of the
act); Buras v. Barnhart, No. 01-618, 2004 WL 74315 (E.D. La. Jan. 14, 2004) (Zainey, J.)
(collecting cases and finding that $125 is the accepted fee in the district); Knight v. Barnhart, No.
02-1741, 2003 WL 21467533 (E.D. La. June 20, 2003) (Vance, J.) (same); Jackson v. Barnhart, No.
01-1911, 2002 WL 927799 (E.D. La. May 7, 2002) (Barbier, J.) (same).
Only recently has this federal court awarded an hourly rate higher than $125. See
Thibodeaux v. Astrue, 914 F. Supp. 2d 789, 793 (E.D. La. 2012) (awarding hourly rate of $160 under
the EAJA); Ramos v. Astrue, Civ. A. No. 11-1457, 2012 WL 3637868, *2 (E.D. La. Aug. 23, 2012)
(awarding hourly rate of $150 under the EAJA); Williams v. Astrue, 2011 WL 5417116 (E.D. La.
Oct. 14, 2011) (awarding hourly rate of $160.00 under the EAJA); Brown v. Astrue, Civ. A. No. 076933, 2008 WL 4186877 (E.D. La. Sept. 9, 2008) (same).
When a given locale has experienced a significant change in the cost of living, the court may
increase the hourly rate beyond the nominal statutory cap. Baker v. Bowen, 839 F.2d 1075, 1084
(5th Cir. 1988). The rate need not precisely track the cost of living increase for the geographical
area, but instead should be calculated “only to the extent necessary to ensure an adequate source of
representation.” Id.
The Fifth Circuit has held “that cost-of-living adjustments under the EAJA must be made
to reflect the appropriate rate in the year in which the services were rendered.” Perales v. Casillas,
950 F.2d 1066, 1076 (5th Cir. 1992). Therefore, EAJA fees must be adjusted yearly. To do
otherwise “in effect award[s] interest for the . . . delay in payment” and “is a prohibited award of
interest against the United States.” Id. at 1076-77. According to the Court's calculation, the cost
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of living in this area increased approximately 49.68 per cent between March 1996, when Congress
implemented the $125 cap, and November 2013, the mid-point of the year during which the majority
of the instant services were rendered. See, e.g., Richards v. Astrue, Civ. A. No. 07-1020, 2008 WL
4544374 (W.D. La. Oct. 7, 2008) (noting that claimant argued that Consumer Price Index (“CPI”)
increased by 34.89 percent through December 2007).2 This change is not insignificant. Increasing
the $125 statutory cap by 49.68 per cent would result in an hourly rate of approximately $187.10.
Absent other circumstances, however, the original $125 per hour reflected the maximum rate to be
awarded under the EAJA. Thus, the CPI adjusted rate range of $187.10 contemplates the maximum
rate that could be awarded today. Baker, 839 F.2d at 1084 (holding that increased rate may never
exceed the percentage by which the market rate increased since statute enacted).
After due consideration of prevailing market conditions and the healthy community of social
security practitioners in this area, the Court will to accept the hourly rate of $175.00 per hour for this
EAJA petition and those filed in the near future. This Court accepted such an hourly rate in Cavin
v. Social Security Administration and is not inclined to downwardly depart at this time. Civ. A. No.
12-1144, 2014 WL 28864 (E.D. La. Jan. 2, 2014); see also Brown v. Astrue, Civ. A. No. 07-6933,
2008 WL 4186877 (E.D. La. Sept. 9, 2008) (settling on an hourly rate of $150); see also
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In Zamora v. Astrue, the court calculated the cost of living adjustment by comparing the
CPI for March 1996, the year in which the $125 EAJA rate became effective, with the
CPI for the period when the services were rendered. Civ. A. No. C-08-187, 2009 WL
311312 *6, n.1 (S.D. Tex. Feb. 9, 2009). To discern the percentage CPI increase, the
court subtracted the March 1996 CPI for All Urban Consumers (155.7) from the thencurrent CPI and divided the difference by the March 1996 CPI for All Urban Consumers
(155.7). Id.
In this suit, the CPI in March 1996 was 155.7. The CPI in November 2013 – the midpoint for the services rendered here – was 233.06. Accordingly, this reflects an increase
of 49.68% (233.06-155.7/155.7).
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Thibodeaux, 914 F. Supp. 2d at 793 (awarding hourly rate of $160 under the EAJA); Williams v.
Astrue, 2011 WL 5417116 (E.D. La. Oct. 14, 2011) (Knowles, M.J., adopted by Berrigan, J.)
(awarding hourly rate of $160.00 under the EAJA). Accordingly, the Court recommends an
attorney-fee award in the amount of $5,775.00 (33 hours at $175.00/hour).
Defendant asks the Court to reduce the award to $160/hour, citing three unpublished
decisions from this district dated after this Court’s opinion in Cavin. Defendant argues that Cavin
is inapplicable because it failed to oppose the petition for attorneys’ fees in that case. But that
argument is specious. Awarding defendant a reduction in plaintiff’s counsel’s fees because it failed
to oppose an earlier motion? That simply makes no sense. This Court also notes that it awarded an
hourly rate of $160 in both 2011 and 2012, three and two years ago, respectively. See Thibodeaux,
914 F. Supp. 2d at 793; Williams, 2011 WL 5417116, *1. The cost of living has certainly increases
since then. Given that this Court could in theory award an hourly rate of $187.10, this Court finds
that $175/hour is reasonable.
III.
To Whom Defendant Shall Remit the Award
Because plaintiff here executed an assignment of the EAJA fees and expenses to Brian Paul
Spurlock of the Disability Law Center, plaintiff’s counsel asks that the Commissioner remit the
award directly to him. The Commissioner disagrees, arguing that the fee award is payable directly
to the litigant.
This issue requires little deliberation as this Court has addressed in earlier opinions under
the EAJA. In Astrue v. Ratliff, the United States Supreme Court explicitly held “that a § 2412(d)
fees award is payable to the litigant” because the government has a statutory right to offset such a
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fee award to satisfy a pre-existing debt that the litigant may owe to the United States. 560 U.S. 586,
588-89 (2010). There, the Supreme Court held that the term “prevailing party” in the EAJA refers
only to the litigant and not to the litigant’s attorney. Id. at 591-92. As Justice Sotomayor explained
in her concurring opinion, “The EAJA does not legally obligate the Government to pay a prevailing
litigant’s attorney, and the litigant’s obligation to pay her attorney is controlled not by the EAJA but
by contract and the law governing that contract.” Id. at 599 (Sotomayor, J., concurring).
Accordingly, the fee is payable directly to the litigant here.
III.
Conclusion
For the foregoing reasons,
IT IS ORDERED that the Petition for Attorney’s Fees be GRANTED IN PART, in that the
Commissioner is ordered to pay attorney’s fees in the amount of $5,775.00 (33 hours at $175.00 per
hour) to Kellie M. Dubois.
New Orleans, Louisiana, this 18th day of November, 2014.
___________________________________
DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE
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