Taylor v. Commissioner of Social Security
Filing
20
DECISION AND ORDER re 17 Motion for Attorney Fees. Signed by Hon. Jeremiah J. McCarthy on 1/17/2020. (JD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
DOMINIQUE TAYLOR,
Plaintiff,
DECISION AND ORDER
1:18-cv-00377-JJM
v.
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.
_____________________________________
Plaintiff commenced this action on March 26, 2018, arguing that the
Commissioner’s denial of her claims for Social Security Disability Benefits were not supported
by substantial evidence and was contrary to law and regulation. Complaint [1]. 2 On September
24, 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 [15]. Following
the entry of a Judgment [16], plaintiff filed a motion for an award of attorney’s fees in the
amount of $6,400.59 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412, and
filing fee costs in the amount of $400.00 [17]. The parties then filed a Stipulation [19] agreeing
that plaintiff should receive attorney’s fees in the amount of $6,300.59 and costs in the amount of
$400.00.
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, in addition to the costs which may be awarded pursuant to subsection (a), 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.” The amount of costs awarded
“shall . . . be limited to reimbursing in whole or in part the prevailing party for the costs incurred
by such party in the litigation.” 28 U.S.C. § 2412(a)(1). 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.
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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
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 stipulation provides
plaintiff’s counsel fees at an effective hourly rate of $195.67. 3 This adjustment is appropriate.
Moreover, I find the number of hours devoted to this case, as detailed in counsel’s Declaration
([17-2], ¶3) to be reasonable. Therefore, I find no reason to second guess the fee amount to
which the parties have stipulated. In addition, the docket reflects that plaintiff paid a filing fee in
the amount of $400.00 upon filing the complaint. See Docket Text [1] (“COMPLAINT against
Commission of Social Security $400 receipt number 0209-3062650”).
Under her Fee Agreement with the Law Offices of Kenneth R. Hiller, PLLC [173], plaintiff assigned her right to any fee award to her counsel. Pursuant to the Stipulation, the
parties agree “that payment will be made directly to Plaintiff’s attorney if Plaintiff has agreed to
assign the rights to fees to his/her attorney, provided that Plaintiff owes no debt that is subject to
offset under the Treasury Offset Program” [19]. “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.
3
See CPI adjustment calculation. [17-1], p. 4. The effective hourly rate was calculated by dividing the
stipulated fee ($6,300.59) by the total number of hours (32.2) documented in plaintiff’s fee application.
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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 Stipulation [19] is approved as follows: the court awards plaintiff attorney’s
fees in the amount of $6,300.59 and costs in the amount of $400.00 payable to plaintiff's counsel,
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: January 17, 2020
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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