Caviness v. Social Security, Commissioner of

Filing 19

OPINION AND ORDER granting in part and denying in part 15 Motion for Attorney Fees. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANGELA LEIGH CAVINESS,
Plaintiff,
Case No. 13-15288

v.
CAROLYN W. COLVIN,
Defendant.
/

OPINION AND ORDER GRANTING IN PART PLAINTIFF’S PETITION FOR
ATTORNEY FEES
Plaintiff Angela Leigh Caviness initiated the instant action against Defendant
Carolyn W. Colvin, the acting Commissioner of Social Security, seeking to have this
court review the Social Security Administration’s denial of her disability benefits. (Dkt. #
1, Pg. ID 1.) Defendant then filed an agreed-to stipulation to remand the case to the
Administration for further hearings and enter judgment in favor of Plaintiff, (Dkt. # 12,
Pg. ID 1557), and this court filed an order granting that stipulation and entering
judgment for Plaintiff, (Dkt. # 13-1; Dkt. # 14).
Now before the court is Plaintiff’s Petition for Attorney Fees, (Dkt. # 15), on
behalf of her attorney, Howard D. Olinsky, pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. Though the act sets a maximum rate of $125 per hour, 28
U.S.C. § 2412(d)(2)(A)(ii), Plaintiff requests a rate of $185.01 per hour for 39 hours of
work plus an award of costs of $15.39 for service of her summons and complaint, (Dkt.
# 15, Pg. ID 1565). Defendant argues that Plaintiff’s evidence is “insufficient to justify
an hourly rate in excess of the statutory cap,” and that the court is “not required to” grant

Plaintiff’s requested reward. (Dkt. # 16, Pg. ID 1584.) This matter is fully briefed, and
no hearing is needed. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the
court will grant Plaintiff’s Petition for Attorney Fees in part according to the EAJA’s
statutory maximum of $125 per hour and deny it in all other respects.
I. BACKGROUND
On October 31st, 2013, Plaintiff received a letter from the Social Security
Administration denying her request for review of an Administrative Law Judge’s (“ALJ”)
decision not to grant her disability benefits. (Dkt. # 1, Pg. ID 4.) On December 30th,
2013, Plaintiff filed a civil suit against Defendant in this court to review the ALJ’s
decision. (Id. at 1-2.) On September 18th, 2014, Defendant filed an agreed-to
stipulation petitioning this court to remand the case for further proceedings and to enter
judgment in favor of Plaintiff. (Dkt. # 12, Pg. ID 1557.) On September 30th, 2014, this
court entered an order granting the stipulation, (Dkt. # 13-1, Pg. ID 1563), and entered
the requested judgment. (Dkt. # 14).
On October 24th, 2014, Plaintiff filed a petition in this court for attorney fees in
excess of 28 U.S.C. § 2412's statutory maximum of $125 per hour. (Dkt. # 15, Pg. ID
1565-66.) Taking her petition and reply brief together, Plaintiff provides as evidence of
her claim’s merit the hourly market rates for Michigan attorneys in 2010, (Dkt. # 17, Pg.
ID 1596 n. 1), an affidavit of her attorney’s qualifications for fees under the EAJA, (Dkt.
# 15-1, Pg. ID 1567-71), the Consumer Price Index for the Midwest urban area showing
an increase in the cost of living between 1996, when the EAJA’s maximum fee was last
raised, and August 2014, (Id. at 1578), and an itemization of his billable hours spent on
the case, (Id. at 1579-80).
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Defendant argues that “the statutory rate is a ceiling and not a floor” and that “the
court can, but is not required to, determine that the increase in the cost of living justifies
a higher fee.” (Dkt. # 16, Pg. ID 1584.) Furthermore, Defendant argues that “Plaintiff’s
justification [is] deficient.” (Id. at 1586-87.)
In reply, Plaintiff cites to two recent Eastern District of Michigan cases in which
her attorney has won fees in excess of the statutory maximum by providing the same
evidence she provides here, (Dkt. # 17, Pg. ID 1595), and petitions this court to follow
these decisions by granting her attorney his requested fees, (Id. at 1598).
II. STANDARD
Pursuant to 28 U.S.C. § 2412(a)(1), “a judgment for costs . . . may be awarded to
the prevailing party in any civil action brought by or against . . . any official of the United
States acting in his or her official capacity.” § 2412(d)(1)(B) states that:
“[a] party seeking an award of fees . . . shall, within thirty days of final
judgment in the action, submit to the court an application . . . which shows
that the party is a prevailing party and is eligible to receive an award under
this subsection, and the amount sought, including an itemized statement
from any attorney or expert witness representing or appearing in behalf of
the party stating the actual time expended . . . . The party shall also allege
that the position of the United States was not substantially justified.”
§ 2412(d)(2)(A)(ii) stipulates 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.” § 2412(d)(2)(B) clarifies that “‘party’ means (i) an
individual whose net worth did not exceed $2,000,000 at the time the civil action was
filed.” § 2412(d)(2)(G) defines “final judgment” as “a judgment that is final and not
appealable.”
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“[T]he fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). To meet this burden, “Plaintiffs 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 v. Comm’r of Soc. Sec., 578 F.3d
443, 450 (6th Cir. 2009) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)).
III. DISCUSSION
Plaintiff claims that she has fulfilled all of the EAJA’s requirements to be awarded
attorney fees, and indeed, it seems that she has. Plaintiff states that at the time the
action was filed, her net worth “did not exceed $2,000,000.” (Dkt. # 15-1, Pg. ID 1569.)
She alleges that the United States’ position in this litigation was not substantially
justified because “the ALJ’s finding that Plaintiff did not have an impairment or
combination of impairments that significantly limited her ability to perform basic workrelated activities was not supported by substantial evidence.” (Id. at 1570.) She has
provided an itemized list of hours that her attorney has spent on this case, (Id. at 1579),
and she has stated her amount requested as $7,230.78, (Dkt. # 15, Pg. ID 1565), or
$7,215.39 for 39 hours of work at $185.01 per hour plus $15.39 for service of the
summons and complaint, (Dkt. # 15-1, Pg. ID 1568).
Furthermore, Plaintiff has received “a judgment that is final and not appealable.”
28 U.S.C. § 2412(d)(2)(G). This court remanded Plaintiff’s case under sentence four of
42 U.S.C. § 405(g), (Dkt. # 13-1, Pg. ID 1563), which rendered an appealable judgment,
(Dkt. # 14). “When the time for seeking appellate review has run, the sentence-four
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judgment fits squarely within the term ‘final judgment’ as used in § 2412(d).” Shalala v.
Schaefer, 509 U.S. 292, 298 (1993). This judgment was also in Plaintiff’s favor, making
her the prevailing party. (Dkt. # 13, Pg. ID 1560; Dkt. # 13-1, Pg. ID 1563.) This court
entered its judgment on September 30th, 2014, (Dkt. # 13-1, Pg. ID 1563), and Plaintiff
timely petitioned the court for fees on October 24th, 2014, (Dkt. # 15, Pg. ID 1566).
To justify requesting fees beyond the statutory maximum of $125 per hour,
Plaintiff provides a Consumer Price Index showing that the cost of living has increased
between the last time that the statutory maximum was raised and the present day. (Dkt.
# 15-1, Pg. ID 1578.) She also submits her attorney’s affidavit demonstrating his
eligibility for such fees. (Id. at 1567-71.) Finally, the court has received data revealing
the hourly fees of Michigan attorneys in 2010 with comparable years of experience to
Plaintiff’s attorney. (Dkt. # 17, Pg. ID 1596.) Although this evidence complies with
Bryant’s minimum requirements, see 578 F.3d at 450, and court have previously held
this evidence sufficient to award fees beyond the statutory maximum within the past two
years, see Wilson v. Colvin, No. 13-10158, 2014 U.S. Dist. LEXIS 26912 (E.D. Mich.
2014); Hayes v. Comm’r of Soc. Sec., No. 12-15231, 2014 U.S. Dist. LEXIS 151220
(E.D. Mich. 2014).
The EAJA provides, however, 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 . . .
justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The EAJA grants the court
discretion over whether or not to grant fees in excess of $125 per hour even if Plaintiff
shows what other courts have deemed sufficient evidence to justify such fees. While
such evidence is necessary under Bryant to allow the court to grant fees beyond the
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EAJA, it is not necessarily sufficient to guarantee such an award. Were courts to
automatically follow previous courts in granting higher fees, it would effectively serve as
a one-way ratchet; raising the EAJA’s statutory maximum to Plaintiff’s requested
amount for all future claim. This would usurp Congress’s prerogative to set the
maximum rate. Rather than engage in de facto alteration of the statutory maximum, this
court elects to follow Congress’ direction that no fee above $125 per hour shall be
granted unless the court determines that such fee is justified. The court makes no such
finding here. $125 per hour is sufficient.
The court will grant Plaintiff $4,875.00 for 39 hours of work at $125 per hour plus
$15.39 for service of the summons and complaint; a total of $4,890.39.
IV. CONCLUSION
IT IS ORDERED that Plaintiff Angela Leigh Caviness’s Petition for Attorney Fees,
(Dkt. # 15), is GRANTED IN PART in that Howard D. Olinsky is awarded $4,890.39. It
is DENIED in all other respects.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 17, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 17, 2015, by electronic and/or ordinary mail.

S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-15288.CAVINESS.fees.wpd

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