Cain v. Colvin

Filing 24

ORDER granting in part and denying in part 22 Motion for Attorney Fees. Signed by Magistrate Judge Jane M. Virden on 12/19/14. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

MELVIN CAIN

PLAINTIFF

V.

NO. 3:14CV00079-JMV

CAROLYN W. COLVIN
Acting Commissioner of SSA

DEFENDANT

ORDER ON PETITION FOR ATTORNEY’S FEES
Before the court is Plaintiff’s petition [22] for attorney’s fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). In these proceedings Plaintiff sought
judicial review of the Social Security Commissioner’s final decision denying a claim for
benefits. By Judgment [21] dated September 29, 2014, this court remanded this case to the
Commissioner for further proceedings. Plaintiff now seeks attorney’s fees in the amount of
$7,362.95, representing 38.6 hours of attorney time at a rate of $190.75 per hour on the grounds
that he was the prevailing party and the Commissioner’s position was not “substantially
justified.” The Commissioner has filed no response to the instant request for fees. Nevertheless,
for the reasons that follow, the court is of the opinion that the amount requested should be
slightly reduced.
In the case of Fowler v. Colvin, Cause No. 4:14cv39-JMV, this court determined that of
the two indices (national and regional) offered for the purpose of calculating the cost-of-living
adjustment (“COLA”) under the EAJA, the “South urban” index, the regional index, better
reflected the cost-of-living increase for the locale where the litigation occurred (Mississippi).
Here, Plaintiff’s counsel’s calculation of fees is based on figures taken from the national index.
Because the litigation here occurred in the same division as the litigation in Fowler and for the

sake of consistency, the court finds the regional index is more appropriate for calculation of the
COLA in this case.
According to the regional index–published by the Bureau of Labor Statistics on its
website–the CPI for the South urban region was 152.4 in March 1996, when the $125 EAJA
hourly cap was instituted. The average regional CPI figure for the months in 2014 when counsel
performed most of his work on this case (July - October) was 231.629. This is an increase of
approximately 52 percent since March 1996 and, therefore, represents a significant increase in
the cost of living which justifies an increase in the hourly rate for attorney’s fees. Ultimately,
this increase in the EAJA’s statutory rate of $125 yields an adjusted hourly rate of $189.98 in
this case (231.629 x125/152.4). Therefore, counsel is entitled to no more than $7,333.23 for
38.6 hours of work performed in 2014. The court finds this amount is reasonable and does not
exceed market rate attorney’s fees.
THEREFORE, IT IS ORDERED:
That the Commissioner shall promptly pay to Plaintiff $7,333.23 in attorney’s fees for the
benefit of counsel for Plaintiff.
This, 19th day of December, 2014.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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