Wigginton v. Social Security Administration
ORDER: IT IS HEREBY ORDERED that Plaintiff's 18 Petition for Attorney's Fees is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Plaintiff Melissa Wigginton is awarded attorneys' fees in the amount of $5,862.50, representing 33.50 hours of time at a rate of $175.00 per hour. IT IS FURTHER ORDERED that attorney's fees are to be awarded to Plaintiff, not Plaintiff's counsel. Signed by Judge Nannette Jolivette Brown on 7/19/2017. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOCIAL SECURITY ADMINISTRATION
Before the Court is Plaintiff Melissa Wigginton’s (“Plaintiff”) “Petition for Attorney’s
Fees” pursuant to the Equal Access to Justice Act.1 Having considered the motion, the
memorandum in support, the memorandum in opposition, the record, and applicable law, for the
reasons discussed below, the Court will grant the motion in part and deny it in part, limiting the
rate of the attorney fee requested to $175.00 per hour, and awarding attorney’s fees to Plaintiff not
On December 10, 2015, Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for review
of the final decision of Defendant, the Acting Commissioner of the Social Security Administration,
(the “Commissioner” or “Defendant”) denying her claim for disability insurance benefits (“DBI”)
and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the
“Act”).2 This matter was referred to a United States Magistrate Judge to prepare a Report and
Rec. Doc. 18.
Rec. Doc. 1.
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On March 1, 2016, the
Commissioner answered the complaint.3
The Magistrate Judge issued a Report and Recommendation on December 9, 2016,
recommending that the decision denying Plaintiff’s claim for SSI and DIB be affirmed.4 After
Plaintiff filed timely objections to the Report and Recommendation, the Court reviewed Plaintiff’s
claims de novo.5 On March 6, 2017, the Court declined to adopt the recommendation and remanded
this matter to the ALJ pursuant to 42 U.S.C. § 405(g) for a new hearing.6
Plaintiff filed the pending motion for attorney’s fees on June 5, 2017.7 On June 14, 2017,
the Commissioner filed an opposition to Plaintiff’s motion for attorney’s fees.8
II. Parties’ Arguments
Plaintiff’s Arguments in Support of Petition for Attorney’s Fees
Plaintiff asserts that she is entitled to attorney’s fees under the Equal Access to Justice Act
Rec. Doc. 10.
Rec. Doc. 14.
Rec. Doc. 16.
Rec. Doc. 18.
Rec. Doc. 20.
(“EAJA”), 28 U.S.C. § 2412(d).9 Plaintiff contends that she is a prevailing party under the EAJA.10
Therefore, she argues that she is entitled to attorney’s fees unless the Commissioner can prove that
her position in this matter was “substantially justified.”11
Plaintiff requests attorney’s fees in the amount of $6,482.00.12 This amount is based on an
hourly rate of $193.50 and 33.50 hours of work.13 Plaintiff asserts that the number of hours claimed
is reasonable considering the result obtained.14 She argues that the hourly rate of $193.50 is
calculated on the basis of the $125.00 hourly rate authorized by the EAJA enhanced by the increase
in the cost of living reflected by the Consumer Price Index.15 Finally, Plaintiff asserts that she has
executed an assignment of EAJA fees and expenses to her attorney, Paul Brian Spurlock, and that
payment of attorney’s fees should be made directly to Paul Brian Spurlock.16
The Commissioner’s Memorandum in Opposition
The Commissioner filed a memorandum in opposition disputing only the hourly rate
requested by Plaintiff and that fees be awarded to Plaintiff rather than her attorney.17 The
Commissioner notes that the Fifth Circuit has adopted the “lodestar” approach for calculating
Rec. Doc. 18-2 at 1.
Id. at 2.
Id. at 2–3.
Id. at 3.
Id. at 4.
Id. at 5.
Rec. Doc. 20.
reasonable attorney’s fees in social security cases, where the number of attorney hours reasonably
expended on litigation is multiplied by a reasonable hourly rate.18 The Commissioner asserts that
a $175 per hour rate is appropriate for social security cases arising in this district.19 Because
Plaintiff provided no information addressing a change in market conditions to justify an increase
in the prevailing market rate, the Commissioner asserts that this Court should reject the requested
enhancement to $193.50 per hour.20 Finally, the Commissioner notes that the Supreme Court has
held that EAJA awards are payable directly to Plaintiff, as the prevailing party, not the attorney.21
III. Law and Analysis
Under the EAJA, the Court shall award to a prevailing party fees and other expenses
incurred by that party in any civil action, including proceedings for judicial review of agency
action, brought by or against the United States, “unless the court finds that the position of the
United States was substantially justified or that special circumstances make an award unjust.”22
Here, Plaintiff is a prevailing party entitled to attorney’s fees under the EAJA. Moreover, the
Commissioner does not argue that her position was substantially justified or that special
circumstances make an award of attorney’s fees unjust. Instead, the Commissioner only disputes
the hourly rate requested by Plaintiff.
Id. at 2.
Id. at 3 (citing Lasserre v. Berryhill, 2017 WL 897841 (E.D. La 3/7/17) (Lemon, J.); Vanegdom v. Colvin,
2016 WL 4927868 (E.D. La. 9/16/16) (Vance, J.)).
Id. at 4 (citing Astrue v. Ratliff, 560 U.S. 586, 591–598 (2010)).
28 U.S.C. § 2412(d)(1)(A).
Under the EAJA, “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 ability
of qualified attorneys for the proceedings involved, justifies a higher fee.”23 The district court has
discretion to increase this hourly rate beyond the statutory cap in order to arrive at a reasonable
rate for attorney’s fees in a particular market.24
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.”25 Because the EAJA
was amended in March 1996 to increase the statutory ceiling from $75 to $125 per hour, the
appropriate time period for which to calculate any cost-of-living increase in the instant case is from
March 1996 through June 2016, the midpoint of this litigation which spanned from 2015 through
2016.26 Plaintiff has provided no evidence of the increase in the cost of living in the New Orleans
area specifically, but she refers the Court to the Consumer Price Index prepared by the Bureau of
Labor and Statistics.27 The Commissioner has not disputed the accuracy of the information in the
Bureau of Labor Statistics report. Therefore, the Court takes judicial notice of the information in
the Consumer Price Index.28
28 U.S.C. § 2412(d)(2)(A)(ii).
Yoes v. Barnhart, 467 F.3d 426, 426 (5th Cir. 2006) (per curiam) (“The Equal Access to Justice Act vests
the district courts with discretion to arrive at a reasonable rate for attorneys’ fees based on cost-of-living adjustments
and other factors. . . . These factors are market based.”).
Perales v. Casillas, 950 F.2d 1066, 1076 (5th Cir. 1992).
Rec. Doc. 18-2 at 4. See United States Department of Labor, Bureau of Labor Statistics,
Fed. R. Evid. 201.
According to the Bureau of Labor Statistics report, the average Consumer Price Index for
All Urban Consumers (“CPI-U”) was 155.7 in the month of March 1996.29 The average CPI-U for
June 2016 was 241.018,30 an increase of approximately 54.8 percent since March 1996. A 54.8
percent increase in the EAJA’s statutory rate of $125 yields an adjusted hourly rate of $193.50.31
In Baker v. Bowen, the Fifth Circuit expressly rejected the argument that increases in the
EAJA must precisely track any increase in the cost of living.32 The court noted that “while the
statute clearly allows an adjustment for changes in the cost of living, it does not absolutely require
it.”33 Rather, the Fifth Circuit characterized the EAJA rate adjusted for cost of living as the
maximum allowed by the statute.34
This Court has previously awarded attorneys’ fees at a rate of $175.00 per hour in Social
Security appeals for work performed in 2013, 2014 and 2015.35 Plaintiff has provided no
information addressing a change in market conditions in New Orleans to justify an increase in the
prevailing market rate as previously determined by this Court. Accordingly, the Court finds that
an hourly rate of $175.00 for work performed on this Social Security appeal from 2015 through
2016 is reasonable in the New Orleans legal market and consistent with recent decisions of this
http://www.bls.gov/ro5/cpiushistorical.pdf, at p. 1.
125 x .548 = 68.5; 125 + 68.5 = 193.50.
839 F.2d 1075 (5th Cir. 1988).
Id. at 1084 (emphasis in original).
See Robinson v. Colvin, No. 14-1530 (E.D. La. Dec. 28, 2015) (Brown, J.); Washington v. Colvin, No. 14123 (Dec. 11, 2015) (Brown, J.); Butler v. Colvin, No. 13-2459 (Jun. 29, 2015) (Brown, J.); Kolb v. Colvin, No. 135085 (Jan. 21, 2016).
Court concerning the reasonable hourly rate for attorney’s fees under the EAJA. Applying the
hourly rate of $175.00 to the 33.50 hours of attorney time expended by Plaintiff’s counsel yields
a fee of $5,862.50.
Finally, Plaintiff urges the Court to make the fees award payable to her attorney. Plaintiff
submits a signed assignment of fees stating that she “agree[s] to assign any and all attorney’s fees
and expenses, including filing fees, awarded by the Court in [her] federal court action under the
Equal Access to Justice Act (EAJA) to Paul Brian Spurlock.”36 In Astrue v. Ratlif, the Supreme
Court held that “a § 2412(d) [EAJA] fees award is payable to the litigant and is therefore subject
to a Government offset to satisfy a pre-existing debt that the litigant owes to the United States.”37
Following this binding precedent, the Court will award attorneys’ fees to Plaintiff, rather than her
For the foregoing reasons, the Court grants Plaintiff’s “Petition for Attorney’s Fees” to the
extent that it requests that the Court award attorney’s fees. The Court denies the motion to the
extent that it requests that the Court award an hourly rate of $193.50 and that the award be made
payable to Plaintiff’s attorney. The Court limits the rate requested to $175.00 per hour and award
attorney’s fees to Plaintiff rather than Plaintiff’s attorney. Accordingly,
Adm. Rec. at 114.
560 U.S. 586, 589 (2010).
IT IS HEREBY ORDERED that Plaintiff’s “Petition for Attorney’s Fees”38 is
GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff Melissa Wigginton is awarded attorneys’ fees
in the amount of $5,862.50, representing 33.50 hours of time at a rate of $175.00 per hour.
IT IS FURTHER ORDERED that attorney’s fees are to be awarded to Plaintiff, not
NEW ORLEANS, LOUISIANA, this _____ day of July, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 18.
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