Caviness v. Social Security, Commissioner of

Filing 50

OPINION AND ORDER granting 37 Amended Motion for Attorney Fees; granting 44 Motion for Attorney Fees; granting 45 Motion for Attorney Fees; granting 46 Motion ; granting 47 Motion for Attorney Fees and DIRECTING the parties to submit a proposed stipulated order within 14 days. Signed by District Judge Robert H. Cleland. (LWag)

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
ANGELA LEIGH CAVINESS,
Plaintiff,
v.

Case No. 13-15288

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR
ATTORNEY’S FEES AND RELATED MOTIONS
AND GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEY’S FEES
PURSUANT TO THE SOCIAL SECURITY ACT
Before the court is an Amended Motion for Attorney’s Fees Pursuant to the Equal
Access to Justice Act (ECF No. 37), brought by Plaintiff Angela Leigh Caviness. The
court held a hearing on the motion and received subsequent briefing. For the reasons
stated below, and on the record, the court will grant the motion, as well as the related
subsequent motions which supplemented the Amended Motion. (ECF Nos. 44, 45, 46.)
The court will also grant Plaintiff’s unopposed Motion for Attorney’s Fees Pursuant to
the Social Security Act (ECF No. 47).
I. BACKGROUND
Plaintiff initiated the instant action against Defendant, seeking to have this court
review the Social Security Administration’s denial of her disability benefits. (ECF No. 1,
PageID.1.) Shortly thereafter, Defendant filed a stipulation to remand the case to the
Administration for further hearings and enter judgment in favor of Plaintiff, (ECF No. 12,
PageID.1557), and this court filed an order consistent with that stipulation and entering

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judgment for Plaintiff, (ECF No. 13-1; PageID.14). Plaintiff then brought a Petition for
Attorney Fees, (ECF No.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 requested 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, (ECF No. 15, PageID.1565). Defendant argued 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. (ECF No. 16,
PageID.1584.) The court considered the matter, granted in part Plaintiff’s Petition for
Attorney Fees, but retained EAJA’s statutory maximum of $125 per hour. In so holding,
the court noted:
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,
(ECF No. 17, PageID 1596 n. 1), an affidavit of her attorney’s
qualifications for fees under the EAJA, (ECF No. 15-1, PageID 1567-71),
the Consumer Price Index [“CPI”] 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).
(ECF No. 19, PageID.1602.)1 Defendant had argued 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.” (ECF No. 16, PageID.1584.)
Defendant also asserted that “Plaintiff’s justification [is] deficient.” (PageID.1586-87.)

1

Plaintiff also cited two recent Eastern District of Michigan cases in which her
attorney had won fees in excess of the statutory maximum at the hourly rate of $173.01
by providing the same evidence which she had provided to this court. (ECF No. 17,
PageID1595).
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The court agreed, and found that Plaintiff had not submitted sufficient evidence
justifying a higher hourly rate. The court then granted 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.
Plaintiff appealed. The Sixth Circuit affirmed the court’s ruling that the EAJA does
not provide an automatic cost-of-living adjustment, but vacated the award of attorney
fees at the rate of $125 per hour and remanded for further proceedings. (ECF No. 35,
PageID.1671.) The Sixth Circuit found that the court “correctly determined that
Caviness was not automatically entitled to an attorney fee rate of $185.01 per hour
based on CPI alone.” (ECF No. 35, PageID.1674.) Nonetheless, the Circuit found that
this court did not provide a sufficient explanation for its decision to deny Plaintiff’s
request for an attorney fee rate about EAJA’s statutory cap of $125, and remanded the
matter for further proceedings.
On remand, Plaintiff brought the instant Amended Motion for Attorney’s Fees
Pursuant to the Equal Access to Justice Act, which Defendant opposed. Plaintiff initially
requested that the court award fees in the amount of $17,953.72. This amount was
calculated by the original request of 39 attorney hours at $185.01 per hour ($7,215.39),
plus the additional fees of $10,738.33 related to the appeal for 55.9 attorney hours at
$187.09 per hour ($10,458.33), 3.5 paralegal hours at $80.00 per hour ($280). Plaintiff
also sought costs of $905, which comprised $400 for the filing fee and $505 for the
appellate filing fee. The Amended Petition referenced the previous petition, and also
submitted a renewed affidavit by Plaintiff’s attorney and itemized billing records.

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In response, Defendant asserted that “despite the explicit instructions given by
the Sixth Circuit in her appeal, Plaintiff fails to provide such evidence. Instead, she relies
solely on the Consumer Price Index (CPI). (ECF No. 37-1, Affidavit of Howard
Olinsky at 2-3). In the Sixth Circuit, the CPI is categorically insufficient to justify an
hourly rate in excess of the statutory cap.” (ECF No. 40, PageID.1716.) Defendant
further contended that Plaintiff should not be allowed to submit such additional evidence
in her reply brief. As predicted, in her reply, Plaintiff then attached a 2014 State Bar of
Michigan report suggesting that the prevailing hourly rate for attorneys in practice as
long as Plaintiff’s counsel is at least $200 and at most $515. Plaintiff also submitted an
affidavit of local social security law attorney Randall Phillips stating that in the Eastern
District of Michigan, attorneys generally charge between $175 and $200 per hour, or
more for non-contingent fee cases. (ECF No. 41, PageID.1733.) Mr. Phillips averred
that “[to the best of my knowledge the market rates in the Eastern Michigan area
generally equal or even exceed the rates charged by my law firm, and thus attorneys
are generally not willing to accept representation of Social Security claimants in federal
court at an hourly rate of $125.00 for [sic], or anything that is much less than the
$187.09 or [sic] per hour which is the currant EAJA hourly rate based on the Consumer
Price Index rate.” (ECF No. 41, PageID.1733-34.) Plaintiff asked for additional attorney
fees of $617.40, at a rate of $187.09 for the 3.3 hours spent drafting the reply. (ECF
No. 41, PageID.1727.) Thus, as of the date of the reply, Plaintiff’s requested attorney
fees of $18,571.12, and $905 in costs, or $19,476.12 in total.
Prior to the hearing, Plaintiff submitted a supplemental notice, in which she
indicated her intention to request additional fees for the time and expenses associated
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from traveling from New York to Michigan to argue the motion for attorney fees. Plaintiff
submitted the supplementation after the hearing, asking for additional attorney fees of
one hour at $187.09 for arguing the motion, and half that rate for travel time of 12.5
hours from New York to MIchigan (the parties had requested, but been denied, the
opportunity to argue the motion by telephone). Plaintiff thus sought an additional
$1,356.47 in attorney fees related to oral argument, $413.23 for mileage at the
applicable federal rate and tolls. Thus, Plaintiff’s total requested amount was
$21,245.82. This amount included $19,927.59 in attorney fees, $905 in costs, and
$413.23 in expenses.
Plaintiff’s supplemental request actually asked for $20,832.59 in attorney fees,
which originally confounded the court as the amounts simply did not add up. As the
court attempted to account for the odd mathematics, the motion unfortunately was left
unresolved longer than the court desires or typically acts. Eventually, however, the
court determined the requested amount is a mathematical error. Plaintiff appears to be
adding her additional attorney fees into her last requested amount, from her reply brief,
but that amount already included the $905 in costs. In her supplemental brief, Plaintiff
asks for $20,832.59 in fees and also $905 in costs, but this would double-count the
costs. The court attributes this to a simple scrivener’s error, and has adjusted the
amounts accordingly to allow for only one recovery of the $905 in costs.
Before the court could rule on the motion, another motion was filed, seeking
leave to file a memorandum of supplemental authority. (ECF No. 46.) In this filing,
Plaintiff submitted abundant authority justifying her request for an hourly rate of
$187.09. Unfortunately, Plaintiff included a request that again confounded the court. In
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attempting to request only what had previously been sought, Plaintiff asked the court to
“award attorney fees and costs in the sum of $10,498.16.” (ECF No. 46, PageID.1767.)
The court was at a loss to identify where this amount came from. The brief
back-referenced her Amended Petition, but contained a citation to a request for oral
argument. No response was filed to this motion, and the court now faced another
potential scrivener’s error for which it had to account. Instead, Plaintiff recently filed a
Motion for Attorney’s Fees Pursuant to the Social Security Act. (ECF No. 47.) In this
motion, Plaintiff’s counsel avers that he entered into a valid contingency fee agreement
with Plaintiff, in which he is entitled to 25% of any past-due benefits awarded to Plaintiff
and her family. Specifically, counsel asserts entitlement to awards to Plaintiff and her
family members according to the following chart:
Party

Past-due benefits

Counsel’s 25%

Plaintiff

$163,578.50

$40,894.652

Thomas C. Dewaters

$8,747

$2,186.75

A.L.C.

$24,299

$6,074.75

G.E.C.

$24,299

$6,074.75

A.A.C.

$24,299

$6,074.75

Thus, by the amounts submitted, Plaintiff and her family received a total of
$245,222.50, and counsel requests a total of $61,305.50. Nonetheless, in another
(albeit minor) mathematical inconsistency, counsel requests $61,305.63. This amount,
however, reconciles the previous math error in computing 25% of Plaintiff’s benefits,
and appears to be the accurate computation of 25% of the total award of past-due

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By the court’s calculation, 25% of $163,578.50 should be $40,894.63.
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benefits. Plaintiff avers that the past-due amounts have been awarded and that
$61,305.63 is being withheld by the Commissioner pending determination of fees under
42 U.S.C. § 406(b). The most recent motion requests that the court award these fees to
counsel and that any EAJA fees received by counsel will be refunded to Plaintiff. The
Commissioner filed a response brief in which it does not oppose the motion.
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.”
Section 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.” Section 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.” Section 2412(d)(2)(G) defines “final judgment” as “a judgment that is
final and not appealable.”
“[T]he fee applicant bears the burden of establishing entitlement to an award and
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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)).
Under 42 U.S.C. § 406(b), the court may award “a reasonable fee not in excess
of 25 percent of . . . past-due benefits” awarded to the claimant. 42 U.S.C. §
406(b)(1)(A). The parties agree that if the court awards benefits in excess of the EAJA
award, then Plaintiff will be refunded the EAJA payment in this case.
III. DISCUSSION
A. EAJA Fees
In it’s August 17, 2015 Opinion and Order Granting in Part Plaintiff’s Petition for
Attorney Fees, the court found that Plaintiff was entitled to attorney fees but that Plaintiff
had not shown that she was entitled to fees above the hourly rate capped by EAJA:
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 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[s]. 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
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makes no such finding here. $125 per hour is sufficient.
(ECF No. 19, PageID.1605-06.) On appeal, the Sixth Circuit found this reasoning
insufficient, stating:
But the district court failed to offer a meaningful explanation for its decision
to deny Caviness’s request for an attorney fee rate above the statutory
cap of $125 per hour. The district court acknowledged that the state bar
report provided “data revealing the hourly fees of Michigan attorneys in
2010 with comparable years of experience to Plaintiff’s attorney,” but did
not explain why Caviness did not carry her burden in requesting an hourly
rate higher than $125. In rejecting a higher hourly rate, the district court
simply stated that Congress did not intend for courts to automatically grant
higher attorney fees simply because of an increase in the cost of living.
While this is true, the district court’s failure to explain why “$125 per hour
is sufficient” in this case was an abuse of discretion.
Although we have recently held that state bar reports provide evidence of
reasonable hourly attorney rates, Minor, 826 F.3d at 833, a plaintiff must
also provide evidence that an attorney fee rate above $125 per hour in her
case is justified by the “kind and quality of the services furnished.” 28
U.S.C. § 2412(d)(2)(A). That is, the plaintiff bears the burden of
demonstrating why a higher attorney fee is justified according to the facts
of her case. We hold yet again that a plaintiff’s submission of data alone is
merely necessary, not sufficient, to meet her burden for higher attorney
fee rate under the EAJA. If the plaintiff fails to provide such evidence that
a higher hourly rate is justified in her case, a district court must say so in
rejecting an attorney fee rate above $125 per hour. Our most recent
published cases-Minor and Clark-support this holding, contrary to
Caviness’s argument. While the district court must give an adequate
explanation for its calculation of an attorney fee rate, neither the statute
nor our precedents require the district court to grant a higher hourly rate
when presented solely with the CPI or a state bar report.
(ECF No. 35, PageID.1675.)
Now, on remand, the court is faced with the task of giving an “adequate
explanation” for its decision to limit Plaintiff’s hourly rate at the statutory cap of $125. In
so holding, the court is mindful that, in light of the Sixth Circuit’s opinion, it is not enough
to state, as the court did before, that Plaintiff had not submitted sufficient evidence to
justify a higher award. It is not enough for the court to state that it did not intend to de
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facto rely on other district court decisions which had agreed to raise the hourly rate. It is
not enough to state that the CPI index does not itself justify a higher award. And it is
not enough to say that the Congressionally imposed statutory maximum of $125 is a
sufficient award in this case. The court so stated in its previous order, and the Sixth
Circuit found this explanation inadequate. Thus, the court must provide a more
“adequate explanation” for its hourly rate award.
Defendant appears to miss the point of the Sixth Circuit’s opinion. Indeed, much
of Defendant’s brief is devoted to arguing that Plaintiff had not submitted sufficient
evidence in her Amended Motion and could not raise new arguments or attach new
evidence in a reply brief, because then Defendant does not have a chance to refute the
argument. This argument, however, is moot where, as here, the court has conducted a
hearing on the matter and provided Defendant an opportunity to be heard. Defendant
submits that the Sixth Circuit specifically directed Plaintiff to submit additional evidence
to support her fee request.
The court’s focus on remand is not merely on what evidence Plaintiff has
submitted. The court’s focus is on more thoroughly providing an explanation for the
hourly rate. Here, Plaintiff appears to rely primarily on the CPI detailing the increased
cost of living since the EAJA rate was last raised, a 2014 State Bar of Michigan report
suggesting that the prevailing hourly rate for attorneys in practice as long as Plaintiff’s
counsel, and affidavits of counsel suggesting the market rate for attorneys in social
security disability law, and for attorneys in the local area. It seems to the court that this
evidence, if accepted as sufficient, would always be sufficient to raise the hourly rate of
every social security Plaintiff’s attorney, at least in this district if not nationwide. That is,
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the court wonders if under Plaintiff’s presumption, EAJA is simply outdated and every
court should therefore raise the hourly rate above the congressionally-imposed
maximum. There is for example, no attempt to argue why this case in particular (a case
which resulted in a stipulation by the Defendant to remand to the Commissioner)
justifies a higher rate.
The court finds guidance in a case decided after this court’s 2015 decision, and
referenced in the Sixth Circuit’s opinion. In Clark v. Comm’r of Soc. Sec., 664 F. App’x
525, 530 (6th Cir. 2016), the Sixth Circuit provided an elaboration of Bryant and what is
necessary to justify a higher fee award. In Clark, the district court had awarded fees
based on an hourly rate of $140. The Sixth Circuit affirmed, but commented that
perhaps the district court could have better explained its decision:
This does not mean, however, that the district court could only reasonably
conclude that Plaintiff had met her burden to support the full amount of the
award requested where she provided only the CPI and her attorney’s
affidavit that referenced a different locality from Bowling Green, Kentucky.
Clark’s argument runs roughshod over the statutory requirement that the
“amount of fees awarded … shall be based upon prevailing market rates
for the kind and quality of the services furnished.” 28 U.S.C. §
2412(d)(2)(A). Bryant teaches that there must be some understanding of
the rates charged locally before a district court can adjust for cost of living
or other factors. The Commissioner argues, albeit somewhat indirectly,
that the emphasis on local geographic rates discussed in Bryant is still
relevant once a cost of living adjustment is used to raise the cap on the
award that must be made. We agree.
To the extent that Clark wishes for us to “clarify” the decision in Bryant, we
may do so while leaving that decision in intact and while affirming the
district court’s decision. We conclude that the district court acted within its
discretion when it awarded Clark attorney fees at a rate of $140 per hour,
although perhaps it might have better articulated how it was adjusting the
statutory cap. For example, it might have done so by recognizing its use of
the CPI in an upward adjustment of the statutory cap based on the cost of
living but declining to award an amount equal to that cap in the absence of
any evidence that the full amount would be the prevailing market rate for
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attorneys of comparable skill, experience, and reputation in Bowling
Green, Kentucky, as presented by the Commissioner.
Clark, 664 F. App’x at 530.
Clark provides some guidance to the court for the type of explanation the Sixth
Circuit seeks. Had the court received the benefit of Clark prior to the appeal, the court
would have better articulated its decision that Plaintiff was not entitled to fees above the
hourly rate capped by EAJA. The court would have based its explanation on the fact
that this case presented no unusual challenges, and indeed concluded by stipulation,
that out of town counsel did not display any higher degree of expertise than what the
court would expect from attorneys litigating these types of cases in this district, and
there was no other special factor present, such as the limited availability of qualified
attorneys which would justify a higher fee. At the time the court issued it’s decision,
Plaintiff’s counsel had not shown how the statutory rate was insufficient.
Now, however, the court has the benefit of additional briefing, submissions, and a
full hearing on the issue. Having considered the renewed arguments, and the additional
support provided by Plaintiff, the court is now persuaded that the statutory rate of $125
per hour is insufficient. Plaintiff’s total requested amount, after accounting for
mathematical errors, is $21,245.82. This amount includes $19,927.59 in attorney fees,
$905 in costs, and $413.23 in expenses and is based on a paralegal rate at $80.00 per
hour, and an attorney rate ranging from $185.01 to $187.09 per hour. Having
considered all of Plaintiff’s submissions, the court approves this rate and will grant
Plaintiff the full amount of requested EAJA fees.
Plaintiff is the prevailing party under 28 U.S.C. § 2412(a)(1) has alleged that the
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United States was not substantially justified, and has submitted the necessary
itemizations under § 2412(d)(1)(B). The court finds that the statutory rate is insufficient,
and that Plaintiff’s requested rate is supported both by the cost of living increase and by
a special factor, namely the prevailing market rate for attorneys of comparable skill,
experience, and reputation in the Eastern District of Michigan. Plaintiff has supported
this request by affidavit not just of himself but of Attorney Randall Phillips, who avers
that he has extensive experience representing claimants and supervising his firm’s
social Social Security practice. (ECF No. 41-2, Page ID.1733). Phillips further states
that his current, non-contingent hourly rate ranges from $175-$200, depending on the
matter. (Id. at 3.) He contends that the market rates in the Eastern District of Michigan
are generally equal or exceed the rates charged by his firm and that firms are reluctant
to take Social Security cases at the EAJA rate of $125 per hour. (Id. at 4-5.)
While, initially, the case entailed a simple complaint followed relatively quickly by
a stipulation, Plaintiff’s counsel has since pursued a successful appeal to the Sixth
Circuit and has sought additional relief from this court. Counsel has, in other words,
displayed a higher degree of skill and expertise than reflected by the lower EAJA rate of
$125 per hour. Further, counsel followed up his initial briefing with a supplemental
memorandum citing numerous cases in the Eastern District of Michigan holding similar
rates were justified and were routine in this district for this type of work. (See ECF No.
46, PageID1764-1765 (citing over a dozen cases in this district and the Northern District
of Ohio approving attorney fee awards in the range of $175-$187).)
Plaintiff has therefore “‘produce[d] satisfactory evidence-in addition to the
attorney’s own affidavits-that the requested rates are in line with those prevailing in the
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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)). The court finds Plaintiff’s
requested rate, above the EAJA rate, is justified and will approve the request for
attorney fees and costs in the amount of $21,245.82, including $19,927.59 in attorney
fees, $905 in costs, and $413.23 in expenses.
B. Attorney Fees Pursuant to 42 U.S.C. § 406(b)
Under 42 U.S.C. § 406(b), the court may award “a reasonable fee not in excess
of 25 percent of . . . past-due benefits” awarded to the claimant. 42 U.S.C. §
406(b)(1)(A). Claimants received a total of $245,222.50 for past-due benefits and, after
accounting for the minor mathematical inconsistencies, counsel requests a total of
$61,305.63 for work performed at the district court and at the Sixth Circuit. The request
is based on 160.75 hours of attorney time and 12.3 hours of non-attorney time. The
parties agree that the amount is not in excess of 25% of past-due benefits.
Plaintiff’s counsel was the hearing representative and initially the fee agreement
was apparently incorrectly approved at the administrative level, so Plaintiff’s counsel
requested the approval be reversed. An order was issued on April 29, 2019, reversing
the fee agreement approval. Rather then filing a new petition before the Administrative
Law Judge, who would then make a recommendation to the Regional Chief
Administrative Law Judge, counsel instead filed the instant motion before this court,
which he asserts would be a more expedient way to resolve all pending fee issues at
once. The motion is brought under the Social Security Act § 206(b)(1) and 42 U.S.C. §
406(b). The parties agree that should the court award 406(b) benefits in excess of the
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EAJA award, the Plaintiff will be refunded the full EAJA payment in this case.
Counsel has submitted time logs and records supporting his request for 173.05
total hours, including 12.3 paralegal hours and 160.75 attorney hours. After paralegal
hours are deducted at a rate of $80.00 per hour, it results in an attorney fee of
approximately $375.25 per hour. Defendant does not fundamentally oppose this
approach, and affirmatively contends that “under no circumstances would it be
reasonable for Ms. Caviness to receive less money than she would had the appeal on
the EAJA rate never been pursued.” (ECF No. 49, PageID.1850.) Defendant suggests
different amounts based on his earlier opposition to the award of EAJA fees. Under
Defendant’s calculations, after $12,000 is deducted from the award for EAJA fees,
Plaintiff’s counsel would be receiving $48,601.63, which is based on an implied hourly
rate of $532.03. Defendant states that “[a]fter reviewing prior awards in this Court and
other courts in the Sixth Circuit, the Commissioner has determined that such an impied
hourly rate is not objectionable under the circumstances of this case.” (Id.) Defendant
further asserts that “moderate changes” to the EAJA award would not materially impact
the implied hourly rate and would not alter the Commissioner’s analysis.
Given that the parties are in substantial agreement as to the reasonableness of
Plaintiff’s request, and based on the court’s review of the submissions and attachments,
the court finds that an award of $61,305.63 is appropriate under 42 U.S.C. § 406(b).
For a case such as this, the court finds it to be both reasonable and not in excess of 25
percent of past-due benefits. 42 U.S.C. § 406(b)(1)(A).
IV. CONCLUSION
IT IS ORDERED that Plaintiff Angela Leigh Caviness’s Amended Motion for
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Case 2:13-cv-15288-RHC-CEB ECF No. 50 filed 04/17/20

PageID.1869

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Attorney’s Fees Pursuant to the Equal Access to Justice Act, and related motions, [ECF
Nos. 37, 44, 45, 46) are GRANTED. Plaintiff’s is AWARDED EAJA attorney fees and
costs in the amount of $21,245.82, including $19,927.59 in attorney fees, $905 in costs,
and $413.23 in expenses.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney’s Fees Pursuant
to the Social Security Act (ECF No. 47) is GRANTED in the amount of $61,305.63.
Plaintiff shall be reimbursed the total EAJA fees from this award.
To the extent a further order is required to effectuate these rulings, the parties
are DIRECTED to consult and submit a proposed stipulated order within fourteen days
of entry of this order.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 26, 2020

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 26, 2020, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
C:\Users\lisawagner\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\G8WB0IBI\13-15288.CAVINESS.fees.2.RHC.wpd

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