Maracle v. Commissioner of Social Security
Filing
28
DECISION AND ORDER re 25 Motion for Attorney Fees. Signed by Hon. Jeremiah J. McCarthy on 12/26/2019. (JD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
JOANN MARACLE,
Plaintiff,
DECISION AND ORDER
18-CV-0156 (JJM)
v.
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.
_____________________________________
Plaintiff commenced this action on January 29, 2018, arguing that the
Commissioner’s denial of her claims for Social Security Disability Benefits were not supported
by substantial evidence and that the Commissioner’s denial was based upon legal errors.
Complaint [1].2 On September 12, 2019, I granted plaintiff’s motion for judgment on the
pleadings and remanded the case to the Commissioner for further proceedings consistent with
my Decision and Order [23]. Following the entry of a Judgment [24], plaintiff filed a motion for
an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412, in
the amounts of: $8,572.39 to the Law Offices of Kenneth Hiller PLLC; and $770.56 to Lewis L.
Schwarz, Esq. [25]. The parties then filed stipulations [27, 27-1] agreeing that plaintiff should
receive attorney’s fees for each of her attorneys in the amounts of $8,272.39 and $654.32,
respectively.
1
Andrew M. Saul was sworn in as Commissioner of Social Security on June 17, 2019, and is
automatically substituted as the defendant in this action. See Fed. R. Civ. P. 25(d).
2
Bracketed references are to CM/ECF docket entries.
ANALYSIS
28 U.S.C. §2412(b) authorizes an award of “reasonable fees and expenses of
attorneys . . . to the prevailing party in any civil action brought by or against the United States or
any agency or any official of the United States acting in his or her official capacity.” By
obtaining a remand under the circumstances present in this case, plaintiff is the “prevailing
party” for purposes of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).
The fact that the parties have stipulated to an amount does not relieve this court of
the obligation to determine whether that amount is reasonable. See Pribek v. Secretary,
Department of Health & Human Services, 717 F. Supp. 73, 75 (W.D.N.Y. 1989) (“the
determination of a reasonable fee under the EAJA is for the court rather than the parties by way
of stipulation”); Lockwood v. Colvin, 2016 WL 6902341, *1 (D. Conn. 2016) (“[a]lthough the
parties have reached an agreement as to the appropriate award of fees in this matter, the Court is
obligated to review the fee application and determine whether the proposed fee award is
reasonable”).
A fee award is appropriate “unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust”. 28 U.S.C.
§2412(d)(1)(A). “The burden is on the Government to show that its position was substantially
justified.” Eames v. Bowen, 864 F.2d 251, 252 (2d Cir. 1988). The government has not
attempted to satisfy that burden, nor do I find any “special circumstances” which would make an
award unjust.
28 U.S.C. §2412(d)(2)(A) states 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
-2-
special factor, such as the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee”. The hourly rate may be adjusted to account for inflation as determined by
the Consumer Price Index (“CPI”). See Isaacs v. Astrue, 2009 WL 1748706, *3 (W.D.N.Y.
2009) (“[t]he current statutory cap of $125 per hour took effect in 1996 . . . and the Court may
revise it upward to reflect inflation as determined by the [CPI]”). The stipulations provide
plaintiff’s counselors fees at a blended, effective hourly rate of $199.33 for the Law Offices of
Kenneth Hiller PLLC, and an hourly rate of $172.19 for Mr. Schwartz. 3 This adjustment is
appropriate. Moreover, I find the number of hours devoted to this case, as detailed in counsel’s
Declarations ([25-2], ¶3; [25-4], ¶3; [25-5], ¶3), to be reasonable. Therefore, I find no reason to
second guess the fee amount to which the parties have stipulated.
Under her Fee Agreement with the Law Offices of Kenneth R. Hiller, PLLC [256], plaintiff assigned her right to any fee award to her counsel. Attorney Corinne Manfredi is
associated with the Law Offices of Kenneth Hiller PLLC. See Notice of Appearance [20], and
Declaration of Corinne Manfredi [25-5], p. 2. Pursuant to the stipulation for fees to Ms.
Manfredi [27], the “payment of fees will be made directly to Plaintiff’s attorney, Corinne
Manfredi, pursuant to Plaintiff’s written transfer of his [sic] rights to EAJA fees to his [sic]
attorney, provided that Plaintiff owes no debt that is subject to offset under the Treasury Offset
Program”. In addition, in an affidavit sworn on January 29, 2018, plaintiff assigned her right to
any fee award to her attorney, Lewis L. Schwartz. [25-3]. Pursuant to the Stipulation for fees to
Mr. Schwartz [27-1], the “payment of fees will be made directly to Plaintiff’s attorney, Lewis
Schwartz, pursuant to Plaintiff’s written transfer of his [sic] rights to EAJA fees to his [sic]
3
See CPI adjustment calculation. [25-1], p. 4. The effective hourly rate was calculated by dividing the
stipulated fees ($8,272.39 and $654.32 ) by the total number of hours (41.5 and 3.8) documented in plaintiff’s fee
application.
-3-
attorney, provided that Plaintiff owes no debt that is subject to offset under the Treasury Offset
Program.” “EAJA fees are payable to litigants and are thus subject to offset where a litigant has
outstanding federal debts.” Astrue v. Ratliff, 560 U.S. 586, 594 (2010). While fee awards under
the EAJA are payable to the plaintiff, the plaintiff has the right to assign the EAJA fee award to
his/her lawyer, and where the Commissioner does not oppose the assignment, it can be honored
under the Anti-Assignment Act. See Kerr for Kerr v. Commissioner of Social Security, 874 F.3d
926, 937 (6th Cir. 2017) (“[u]nless the government waives application of the [Anti-Assignment
Act] in EAJA cases, fee awards must be paid to the prevailing party, not to the party’s lawyer”).
CONCLUSION
The stipulations [27 and 27-1] are approved. Accordingly, the court awards
plaintiff attorney’s fees in the amounts of $8,272.39 and $654.32, payable to plaintiff's counsel,
Corinne Manfredi and Lewis Schwartz, respectively, unless the government declines to waive
application of the Anti-Assignment Act, in which case the award shall be payable to plaintiff, but
delivered to plaintiff's counsel.
SO ORDERED.
Dated: December 26, 2019
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?