McGee v. Social Security Administration

Filing 22

ORDER that the 18 Motion for Attorney Fees is GRANTED IN PART as set forth in document. Signed by Magistrate Judge Daniel E. Knowles, III on 7/30/15. (plh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHEILA CHRISTY MCGEE

CIVIL ACTION

VERSUS

NUMBER 14-2201

SOCIAL SECURITY ADMINISTRATION

SECTION "G" (3)

ORDER
Before the Court is an Application for Attorney’s Fees and Costs Under the Equal Access
to Justice Act [Doc. #18] filed by plaintiff, Sheila Christy McGee. The motion is opposed in part.
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 $5,700.00 (38 hours at $150.00 per
hour).1
I.

The EAJA and Number of Hours Claimed
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, 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.

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Plaintiff does not seek costs in her petition.

U.S.D.H.H.S., 20 F.3d 1324 (5th Cir. 1994). The 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 $5,700.00 in attorney’s fees under the EAJA for 38
hours of work performed at a rate of $150.00 per hour. The government opposes only one facet of
plaintiff’s claim, that the fees be paid directly to counsel for plaintiff.2
II.

Hourly Rate
In the petition, plaintiff's attorney seeks to recover fees at an hourly rate of $150.00. 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

The Court’s sua sponte review of counsel’s itemization of hours reveals that the 38 hours
expended in this lawsuit were reasonable.

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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 Dubois
v. SoSoc. Sec. Admin., 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. 07-6933, 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. In Dubois, this Court calculated the cost-of3

living adjustment by comparing the Consumer Price Index (“CPI”) when Congress enacted the
EAJA to the CPI during the year in which counsel had performed the majority of its work in the
lawsuit. 2014 WL 6485639, at *2 & n.2. This Court need not do so again here, given that it has
recently sanctioned $175.00 under the EAJA. See id.
Accordingly, after due consideration of prevailing market conditions and the healthy
community of social security practitioners in this area, the Court accepts the hourly rate of $150.00
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, indeed, an even larger rate in Dubois
– 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 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) (awarding hourly rate of $160.00 under the EAJA). Accordingly, the Court finds reasonable
an attorney-fee award in the amount of $5,700.00 (38 hours at $150.00/hour).
III.

To Whom Defendant Shall Remit the Award
The Commissioner asks the Court to order her to pay the fees directly to the litigant. While

it is unclear whether plaintiff asks the Court to award the fees to counsel or to her directly, the Court
grants the Commissioner’s request. This issue requires little deliberation as this Court has addressed
it 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 fee award to satisfy a pre-existing debt that the litigant may owe to
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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 Application for Attorney’s Fees and Costs Under the Equal

Access to Justice Act [Doc. #18] be GRANTED IN PART, in that the Commissioner is ordered to
pay attorney’s fees in the amount of $5,700.00 (38 hours at $150.00 per hour) to Sheila Christy
McGee.
New Orleans, Louisiana, this 30th day of July, 2015.

___________________________________
DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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