Killings v. Commissioner of Social Security

Filing 27

Memorandum Opinion and Order re 22 Plaintiff's Motion for attorney fees pursuant to the Equal Access to Justice Act. Plaintiff's motion is granted in part and denied in part. Plaintiff is awarded a total of $4,210.37 to fully satisfy all reasonable attorney's fees, expenses, and costs incurred under EAJA. Magistrate Judge Nancy A. Vecchiarelli on 4/9/2013. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAKE L. KILLINGS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 1:12-CV-479
MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Plaintiff, Jake L. Killings (“Plaintiff”), through his counsel, Kirk B. Roose
(“Counsel”), filed an application for attorney’s fees, expenses, and costs in the amount
of $4,386.80 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
(Doc. No. 22.) Defendant, Carolyn W. Colvin, the Acting Commissioner of Social
Security (“Commissioner”)1 does not oppose an award under EAJA, but argues that this
Court should reduce it. Plaintiff also seeks a supplemental award of attorney’s fees in
the amount of $921.90 for services rendered in replying to the Commissioner’s
response in opposition to his EAJA application. (Doc. No. 26.) The Commissioner has
not opposed Plaintiff’s supplemental requests.
For the reasons set forth below, Plaintiff’s motion for EAJA fees is GRANTED in
part and DENIED in part; that is, Plaintiff is awarded a total of $4,210.37 to fully satisfy
all reasonable attorney’s fees, expenses, and costs incurred under EAJA.

1

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. She is automatically substituted as the defendant in this case
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

I.

PROCEDURAL HISTORY

In February 2006, Plaintiff filed an application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. § 423. (Transcript
(“Tr.”) 231-33.) After the agency administrative process ended in the Appeals Council
declining to review the adverse decision of an administrative law judge (“ALJ”), Plaintiff
filed a complaint in this Court. (See Killings v. Commissioner, Case No. 1:09-cv-0845
(N.D. Ohio 2009), Complaint, Doc. No. 1.) On August 3, 2009, upon stipulation by the
parties, the Court remanded the case pursuant to the fourth sentence of § 205(g) of the
Act, 42 U.S.C. § 405(g), to the ALJ for a hearing and a decision. (Tr. 181-83.)
On remand, after conducting hearings in September 2010 and May 2011 (Tr. 2973, 100-49), the ALJ denied Plaintiff’s application on June 8, 2011 (Tr. 10-22). The
Appeals Council declined further review on January 6, 2012, and the ALJ’s decision
became the final decision of the Commissioner. (Tr. 1.) In February 2012, Plaintiff filed
a complaint in this Court, requesting review of the ALJ’s June 2011 decision. (Doc. No.
1.) On November 6, 2012, this Court reversed the Commissioner’s decision and
remanded the case to the ALJ for further consideration. (Doc. Nos. 20, 21.)
On February 4, 2013, Plaintiff filed his EAJA application. (Doc. No. 22.) He
seeks an initial award of $4,386.80, as follows:
•

$4,222.30 for 22.9 hours of services rendered by Counsel between
January and November 2012, at a rate of $184.38 per hour;

•

$135.00 for 2.7 hours of services rendered by Counsel’s appellate
assistance, Diana J. Shriver between January and November 2012, at
a rate of $50.00 per hour; and

•

$29.50 for the cost of copying and mailing the complaint, briefs and
EAJA application, based on a total of 118 pages at $0.25 per page.
2

(Doc. Nos. 22-1, 22-2, 22-3.) In support of his request for Counsel’s hourly rate,
Plaintiff cited to: (1) an attachment to his EAJA application in which he computed the
cost of living increase for EAJA awards for actions filed on or after March 29, 1996
(Doc. No. 22-4); and (2) evidence submitted in support of the EAJA application filed by
the plaintiff in Rodriguez v. Astrue, No. 3:11-CV-398 – who was also represented by
Counsel – to support his request for an hourly rate in excess of $125.00, which Plaintiff
incorporated by reference. (Doc. No. 22 at 4). Plaintiff notes that, in Rodriguez, this
Court found those documents sufficient to support his request for a cost-of-living
increase.
On March 5, 2013, the Commissioner filed her response to the EAJA
Application. (Doc. No. 25.) Although she does not oppose an award under the EAJA,
she argues that this Court should reduce: (1) the hourly rate requested by Counsel; (2)
the number of hours Counsel expended in preparing the EAJA application; (3) the
amount requested for costs and expenses; and (4) the hourly rate for work performed
by Shriver. (Id.)
On March 22, 2013, Plaintiff filed his reply, in which he requests a supplemental
award of $921.90, representing 5.0 hours of services rendered by Counsel, at a rate of
$184.38 per hour, with respect to the Reply. (Doc. No. 26.) Plaintiff attached to his
Reply various documents in support of his requested hourly rate, which this Court will
discuss in relevant detail herein.
II.

LAW & ANALYSIS

EAJA permits an award of only reasonable attorney’s fees. See 28 U.S.C.
3

§2412(d)(2)(A). The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); cf.
Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 (1990) (“[O]nce a private litigant has met the
multiple conditions for eligibility for EAJA fees, the district court’s task of determining
what fee is reasonable is essentially the same as that described in Hensley.”) The
Court will address the Commissioner’s objections to the reasonableness of hours
expended and billing rate in turn.
A.

The Appropriate EAJA Billing Rate for Attorney’s Fees
1.

Whether a Cost-of-Living Increase is Appropriate

The EAJA provides that “[t]he amount of fees awarded . . . shall be based upon
prevailing market rates for the kind and quality of the services furnished,” and “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.” 28 U.S.C. §
2412(d)(2)(A); see Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 449-50 (6th Cir.
2009). Here, Plaintiff seeks EAJA fees for Counsel’s work at an hourly billing rate of
$184.38 per hour—an upward departure from the $125.00 cap – based an increase in
the cost of living caused by inflation since 1996.
In requesting an increase beyond the $125.00 per hour rate cap under EAJA,
plaintiffs bear the burden of producing appropriate evidence to support the requested
increase. Bryant, 578 F.3d at 450. That is, plaintiffs “must produce satisfactory

4

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.” Id. (quoting Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984)). It is within the Court’s discretion to award EAJA fees at a rate
greater than $125.00 per hour. See Begley v. Sec’y of Health & Human Servs., 966
F.2d 196, 199 (6th Cir.1992). However, the Sixth Circuit has held that the CPI, alone, is
insufficient evidence to warrant an award of EAJA fees at a rate greater than $125.00.
Bryant, 578 F.3d at 450.
In Exhibit 4 to his Application (Doc. No. 22-4), Plaintiff states that the appropriate
hourly billing rate under EAJA for services rendered each year is determined by dividing
the United States Bureau of Labor and Statistics' Consumer Price Index (“CPI”)2 for the
year in which services were rendered by the CPI for March 1996, and then multiplied by
$125.00. See also Lopez v. Comm’r of Soc. Sec., No. 3:08-cv-2148, 2010 WL
1957422, at *3 (N.D. Ohio May 14, 2010) (“The Magistrate has routinely calculated the
cost of living adjustment by accounting for increases in the cost of living between the
time the $125 fee was enacted and the time that the fee was earned . . . by comparing
the CPI from March 1996 . . . to the average annual CPI during the year that counsel
rendered his or her services.”). Plaintiff’s calculation of his requested cost-of-living
increase is based on the “U.S. City Average” for “all items” for “all urban consumers” in
2012, the year in which Counsel rendered services in this case. Accordingly, Plaintiff
explains that the EAJA rate in this case is 229.594 (the CPI for 2012) divided by 155.7
2

The Bureau of Labor and Statistics’ CPI calculator may be found online at
http:// www.bls.gov/data/#prices (last visited March 29, 2013).
5

(the CPI for March 1996) and then multiplied by $125.00, which equals $184.38.3
In her response, the Commissioner argues that Plaintiff has not carried his
burden of supporting his request for a cost-of-living increase because: (1) merely citing
to the CPI and the rate of inflation is insufficient to merit an increase; (2) Plaintiff failed
to specify the documents from Rodriguez on which he intended to rely, and, because
Plaintiff failed to provide those documents with this EAJA Application, his arguments
are waived and this Court should not consider them; and (3) Plaintiff has failed to
provide evidence that his requested hourly rate is comparable to rates charged by other
attorney practicing Social Security law in this area.
In support of his Reply, Plaintiff provides the following additional evidence:
(1)

A declaration from attorney Dianne R. Newman, in which she states that: (a) she
practices only Social Security law, with approximately 75 percent of her practice
at the appellate level; (b) a rate of $300 per hour would be “in line with the rates
prevailing in the Cleveland area for similar services by lawyers of reasonably
comparable skill, experience and reputation”; and (c) “[a] rate of less than $200
per hour would be less than the rates prevailing in the Cleveland area for similar
services by lawyers of reasonably comparable skill, experience and reputation”
(Doc. No. 26-1);

(2)

A declaration from attorney Marcia Margolius, in which she states that: (a) she
has “practiced mainly Social Security law for more than 25 years”; (b) when she
seeks fees under the EAJA, she “typically request[s] a rate of $125 per hour . . .
for the sake of expediency and to avoid further litigation on a case”; and
(c) based on her knowledge of Counsel’s work, in her opinion, “the prevailing rate
for his services in Social Security cases should exceed $175/hor to $200/hr . . . .”
(Doc. No. 26-2);

(3)

A declaration from attorney Bradley J. Davis, in which he states that, in a Social
Security case in this Court, he requested an hourly rate of $125 “not because
[he] knew it to reflect that current prevailing market rate, but because of the
additional time and research which would have been necessary in order to
petition for a higher rate more reflective of the prevailing market rate” (Doc. No.

3

These CPI values are not seasonally adjusted.
6

26-3);
(4)

A report from the Ohio State Bar Association titled The Economics of Law
Practice in Ohio, Desktop Reference for 2010, which indicates that the avergae
hourly billing rate of attorneys in the greater Cleveland area in 2010 was $239
(Doc. No. 26-5);

(5)

A report from the National Law Journal and ALM Legal Intelligence titled The
Survey of Law Office Economics, 2011 Edition, reflecting that the value of
services rendered by attorneys since 1985 has increased at a rate faster than
inflation (Doc. no. 26-6);

(6)

Statistics from the Bureau of Labor Statistics (“BLS”) reflecting that the average
hourly wage of legal secretaries in the Cleveland Metropolitan area has
increased from $14.60 in 1999 to $19.70 in 2011 (Doc. No. 26-7); and

(7)

The CPI reflecting that the value of legal services has increased over time (Doc.
No. 26-8).
As a preliminary matter, this Court rejects the Commissioner’s argument that it

should not consider Plaintiff’s arguments that are based on the evidence attached to
Reply. Contrary to the Commissioner’s contention, Plaintiff’s submission of this
evidence does not constitute the raising of a new issue. Rather, the documents respond
directly to the Commissioner’s argument that Plaintiff has failed to satisfy his burden of
proof.
Further, the Commissioner’s contention that this Court should not consider the
documents in support of Plaintiff’s request because the Commissioner has “no way of
ascertaining which arguments from the cited documents [in Rodriguez] Plaintiff intends
to present to the Court” also lacks merit. (Response at 5, Doc. No. 25 at 5.) The
plaintiff in Rodriguez submitted the documents at issue response to this Court’s request
for further information in support of his request for fees in excess of $125 per hour. (See
Rodgirguez, No. 3:11-CV-398, Doc. No. 27.) The issue of plaintiff’s evidentiary support
7

for the cost-of-living increase was the only issue addressed by this Court’s order in
Rodriguez. The documents on which Plaintiff in this case relies were submitted in
response to that order. (See Rodriguez, No. 3:11-CV-398, Doc. No. 28.) Accordingly,
while it likely would have been advisable for Plaintiff to simply attach his evidentiary
support to his initial EAJA application, the Commissioner cannot credibly contend that
she cannot ascertain which arguments Plaintiff intends to make in this case.
The Commissioner contends that, even if this Court considers Plaintiff’s additional
evidence, this Court should not grant his request for an increased hourly rate because,
since the Court’s decision in Rodriguez, other courts in this district have rejected that
same evidence as insufficient. However, several of the cases to which the
Commissioner cites are distinguishable from this case, as Plaintiff has provided
evidence in support of his request for a cost-of-living increase that those plaintiffs did not
provide. For example, in De Nunez v. Astrue, No. 1:11-CV-2285, 2013 WL 60429, *5
(N.D. Ohio Jan. 3, 2013) (Adams, J.), “[i]n order to demonstrate the prevailing market
rate,” the plaintiff “provided ‘The Survey of Law Office Economics, 2011 Edition,’
counsel’s resumes and the national CPI for legal services.” In Keyes v. Astrue, No.
1:11-CV-312, 2012 WL 2498892, * 2 (N.D. Ohio June 27, 2012) (Gwin, J.), “[a]part from
her insufficient reference to the Consumer Price Index,” the plaintiff made “no showing
that the practice at the $125 rate is commercially impracticable.” See also Taylor v.
Astrue, No. 1:12-CV-293, 2012 WL 5465989 (N.D. Ohio Nov. 8, 2012) (Gaughan, J.)
(noting that the plaintiff’s evidence “at best, provides average billing rates for the State of
Ohio” that “are not limited to the Cleveland area (or the Northern District of Ohio) and

8

are not specific to attorneys practicing int he social security field. None of the other
evidence submitted by plaintiff adequately addresses this issue”); Adams v. Astrue, NO.
5:11-CV-904, 2012 WL 3144829, * 2 (N.D. Ohio July 26, 2012) (Burke, Mag. J.) (In his
application for attorney fees, [the plaintiff] relies on the CPI, an assertion that Newman is
one of the few attorneys in Northeastern Ohio that practices social security law in the
Federal District Court and an Affidavit from attorney Newman setting forth her
experience and education. This is insufficient under Bryant.”).
Unlike the plaintiffs in those cases, in this case, Plaintiff has submitted evidence
not only of the increase in cost and value of legal services in general (Doc. Nos. 26-4,
26-5, 26-6, 26-7), but also of the prevailing hourly rate for attorneys who practice social
security law in the Cleveland, Ohio area. The affidavits of Margolius and Newman
reflect that the prevailing hourly rate for Cleveland-area social security disability
attorneys with similar skill and experience as Counsel would not be less than $200.
(Doc. Nos 26-1, 26-2.) Their affidavits, as well as the affidavit of Davis, reflect that, in
those cases where they sought only the cap rate of $125, they did so in order to avoid
further litigation in their cases. (Doc Nos. 26-1, 26-2, 26-3). Other courts in this district
have determined that evidence similar to Plaintiff’s evidence is sufficient to support a
cost-of-living increase in this context. See, e.g., Draper v. Comm’r of Soc. Sec., No.
3:11-Cv-2287 (Mar. 15, 2013) (Carr, J.) (slip copy); Kane v. Astrue, No. 1:10-CV-1874,
2012 WL 5357781, *4 (N.D. Ohio Oct. 31, 2012) (Lioi, J.); Jaworski v. Astrue, No. 1:10CV-2936, 2012 WL 3552634, *2 (N.D. Ohio Aug. 16, 2012) (White, Mag. J.).
Accordingly, the Court concludes that Plaintiff’s evidence adequately supports a cost-ofliving increase in Plaintiff’s EAJA fee rate.
9

2.

Which CPI is the Appropriate Measure

The Commissioner also contends that Plaintiff’s calculation should be based on
the “Midwest” CPI rather than the “U.S. City Average” CPI. The Court agrees that the
“Midwest” CPI appears to be the more appropriate measure of the increase in the cost of
living for purposes of EAJA. There is a split among courts regarding which CPI is most
appropriate for determining a cost of living increase under EAJA. See Jawad v.
Barnhart, 370 F. Supp. 2d 1077, 1083-85 (S.D. Cal. 2005) (collecting cases). However,
this Court and other courts in this district have generally concluded that the “Midwest”
CPI is appropriate, as in this Circuit prevailing parties must show that their requested
rates are in line with those prevailing in the community, not the nation. See Jaworski,
2012 WL 3552634 at *3 (“The Court believes this finding is consistent with the Bryant
decision . . . “); Rodriguez v. Astrue, No. 3:11-CV-398, 2012 WL 2905928, *5 (N.D. Ohio
July 16, 2012) (Vecchiarelli, Mag. J.). The calculation for a cost-of-living increase
between March 1996 and 2012 based on the “Midwest” CPI for “all items” for “all urban
consumers” is 219.100 divided by 151.7 and then multiplied by $125.00, which equals
$180.54.4 Accordingly, Plaintiff has sustained his burden of demonstrating that a costof-living increase to an hourly rate of $180.54 for Counsel is reasonable and appropriate.
B.

The Number of Compensable Hours
The Commissioner argues that this Court should reduce the number of

compensable hours requested by Plaintiff, for several reasons. This Court addresses
4

A historical index for the Midwest CPI for “all items” for Midwest urban”
consumers is available at:
http://data.bls.gov/pdq/SurveyOutputServlet?data_tool=dropmap&series_id=C
UUR0200SA0,CUUS0200SA0 (last visited Apr.1, 2013).
10

each of them in turn.
1.

Time Spent Preparing the EAJA Application

First, the Commissioner argues that Plaintiff requests an unreasonable number of
hours for preparing his EAJA petition. Exhibit 1 to the EAJA Application reflects that
Counsel spent 1.9 hours preparing the application and the time schedules attached to it.
(Doc. No. 22-1.) The Commissioner contends that, with some minor exceptions, the
EAJA Application “appears to consist of boilerplate.” (Response at 7, Doc. No. 25 at 7.)
The Commissioner does not, however, indicate what would constitute a reasonable
amount of time for the completion of the EAJA application. Plaintiff responds that,
“[c]ustomarily, it takes almost two hours to prepare an EAJA application with all its
schedules and exhibits . . . “ and notes that this Court has approved similar amounts of
hours for this task in the past. (Reply at 8, Doc. No. 26 at 8.)
The Commissioner does not substantiate her suggestion that the EAJA
Application is mostly boilerplate. Further, even if the application does consist mainly of
boilerplate, the Commissioner fails to explain why it should have taken Counsel less
than 1.9 hours to prepare the necessary time schedules and insert the information
relevant to this case. Absent further support for her argument, the Commissioner’s
contention lacks merit. Accordingly, this Court will not reduce the number of
compensable hours spent in preparing the EAJA Application in this matter.
2.

Time Spent Reviewing Court E-Mail Messages

Second, the Commissioner argues that this Court should reduce the number of
hours Plaintiff requests for work performed by Shriver to account for time Shriver spent

11

reviewing e-mail messages from the Court. According to the Commissioner, the time
Shriver spent reviewing Court e-mail messages is not compensable because it should
be subsumed within overhead costs for Counsel’s firm. Counsel generally argues that
the reduction is unwarranted, and asserts that, if this Court does reduce Shriver’s hours,
“a reduction of 1.0 hours would be consistent” with this Court’s prior decision.
In evaluating the request for fees for Shriver's activities, the Court is mindful of its
prior observation in this context:
Purely clerical or secretarial tasks, that is, non-legal work,
should not be billed – even at a paralegal rate – regardless of
who performs the work. For example, dictation and typing
are noncompensable, as they are part of the overhead of any
law office. However, activities such as filing a complaint,
filing service requests, and filing return-of-service forms are
clerical tasks that may be considered sufficiently “legal work”
to permit compensation, although any compensation would
be at a lesser rate.
Rodriguez, 2012 WL 2905928 at *6-7 (internal citations omitted) (emphasis in original).
In Rodriguez, this Court deducted time from Shriver’s billed hours to account for the
noncompensable activity of reviewing e-mail messages from the Court. Id; see also
Kane, 2012 Wl 5357781 at *5 (finding that the time an appellate assistant spent
reviewing court e-mail messages was not compensable).
A review of Exhibit 2 to the EAJA Application reflects that Shriver – whose time is
presented in a block-billing format – billed for reviewing court e-mails on: February 28,
2012; March 5, 2012; April 12, 2012; June 5, 2012; August 13, 2012; September 26,
2012; October 12, 2012; and November 6, 2012. With the exception of two dates – April
12, 2012 and August 13, 2012 – Shriver billed for time spent reviewing Court e-mail
messages on days that she also performed other work related to the case. Accordingly,
12

for those days, there is no way to ascertain how long she spent reviewing Court e-mail
messages. However, on the days on which she billed only for reviewing e-mail
messages from the Court, Shriver billed 0.1 hours each day. The schedule of Shriver’s
time contains eight entries for reviewing court e-mail messages. Accordingly, this Court
will reduce the hours attributed to Shriver by 0.8 hours.
3.

Shriver’s Hourly Rate

Third, the Commissioner argues that this Court should reduce Shriver’s hourly
rate to $40, rather than the $50 hourly rate requested by Plaintiff. The Commissioner
contends that such a deduction would be “consistent with past decisions about
[Shriver’s] hourly rate.” (Response at 8, Doc. No. 25 at 8.) Although none of the cases
on which the Commissioner relies discuss the reasonableness of the rate Plaintiff
requests for Shriver, the Court recently denied another plaintiff’s request for the same
$50 hourly rate:
The Court, however, rejects the $50 hourly rate. [The plaintiff]
relies upon the Bureau of Labor Statistics, May 2011
Metropolitan and Non-Metropolitan Employment and Wage
Estimates, which indicates that the administrative/legal
median hourly wage [is] approximately $20 per hour.
Additionally, this Court approved $40 per hour for the same
administrative assistant in [other cases].
Mohr v. Comm’r of Soc. Sec., No. 3;11-Cv-2731, 2013 WL 557176, *5 (N.D. Ohio Feb.
21, 2013) (White, Mag. J.).
Here, Plaintiff relies on the same set of statistics to justify Shriver’s $50 hourly
rate. However, he does not explain why an hourly rate of $50 is necessary for Shriver’s
hours in this case. He neither provides any information regarding her actual hourly
wage, nor offers any other justification for an hourly rate that is more than double the
13

average hourly wage of a legal secretary in the Cleveland area. Accordingly, this Court
will reduce Shriver’s hourly rate to $40.
4.

Copying

Fourth, the Commissioner disputes Plaintiff’s characterization of his copying as
“expenses” rather than “costs.” The Commissioner asserts that the categorization is
critical because, under 28 U.S.C. §§ 2414 and 2412(c)(1), an award of costs is paid by
the Secretary of the Treasury after certification by the Attorney General, and not from
agency funds. Further, the Commissioner argues that this Court should not grant
Plaintiff’s request for copying expenses at all, or, in the alternative that the requested
rate of $0.25 cost per page of copying is excessive. Plaintiff does not address the
Commissioner’s arguments regarding his request for copying costs.
The Commissioner is correct in asserting that Plaintiff’s copying costs should be
taxed as costs under § 2412. Section 2412 provides that, “a judgment for costs, as
enumerated in section 1920 of this title, but not including the fees and expenses of
attorneys, may be awarded 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 in any court having jurisdiction of such action.” 28 U.S.C.
§2412(a)(1) (emphasis added).
Section 1920 includes in its list of costs “[f]ees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the
case.” 28 U.S.C. § 1920(4). As such, “[c]opies obtained only for the convenience of
counsel, including extra copies of filed papers and correspondence, are ordinarily not

14

recoverable.” Charboneau v. Severn Trent Labs., No. 5:04-CV-116, 2006 WL 897131,
*1 (W.D. Mich. Apr. 6, 2006); see Beck v. Buckeye Pipe Line Servs. Co., No. 3:10-CV319, 2011 WL 3040910, *3 (N.D. Ohio July 25, 2011) (Zouhary, J.) (“[T]he party seeking
reimbursement for the photocopying costs has the burden of proving that they were
necessary.”) Here, Plaintiff has not provided any information to support his claim for
copying costs, except to assert that the expenses “were incurred in connection with this
claim. Copying/printing for Efiled documents is calculated at $.25 per page, 2 copies
(plaintiff and file).” (EAJA Application at Ex. 3, Doc. No. 22-3.) Accordingly, Plaintiff has
not demonstrated that the copies were anything other than extra copies of briefs and
other documents filed in this matter, and this Court declines to award Plaintiff’s requests
for copying expenses.5
C.

Supplemental Award
Plaintiff seeks compensation for the hours of services rendered by Counsel

related to his reply in support of his EAJA Application. The value of services rendered in
defending the propriety of an EAJA award may be compensable under EAJA. See
Spurlock v. Sullivan, 790 F. Supp. 979, 982 (N.D. Cal. 1992) (citing I.N.S. v. Jean, 496
U.S. 154 (1990)) (“[A]n award of attorney fees under the EAJA should encompass not
only the fees incurred in the litigation on the merits, but also the fees incurred by the
prevailing party in protecting that fee award in subsequent litigation by the government

5

Further, this Court notes that, even if it did grant Plaintiff’s request for
copying expenses, it would reduce the amount requested. Plaintiff’s
requested rate – $0.25 per page – is excessive. This Court is aware that
there are public copying facilities that charge $0.10 and $0.11 per page
for black and white copies.
15

over the propriety or amount of the EAJA fee award.”) However, in this case, this Court
concludes that Plaintiff’s request is not well taken.
In total, Plaintiff requests compensation for 27.9 hours of time expended by
Counsel in this matter. Of that time, 21.0 hours are associated with Plaintiff’s request for
review of the Commissioner’s final decision by this Court. Counsel expended 1.9 hours
preparing the initial EAJA Application, and an additional 5.0 hours preparing the reply in
support of the EAJA Application. The 5.0 hours devoted to the reply – more than double
the number of hours expended on the initial EAJA Application – represent nearly 18
percent of the total hours expended in this case. The total amount of the hours
associated with litigating Counsel’s fee and expenses in this case – 6.9 hours –
represents more than one-quarter of the total amount of time for which Plaintiff requests
compensation.
Were this the first time that Plaintiff’s counsel raised the issue of his hourly rate
and the evidence necessary to support a cost-of-living increase, this Court might not
question the request in this case. These issues, however, are not new to Counsel, as
he has frequently litigated the issue of his hourly rate in this Court. See, e.g., Jones v.
Comm’r of Soc. Sec., No. 1:10-CV-2568 (N.D. Ohio Sept. 11, 2012), at p.4 (Nugent, J.)
(unpublished opinion) (noting that Counsel is “well-versed on the issue of attorney fees
under the EAJA”); English v. Comm’r of Soc. Sec., No. 1:11-CV-2794 (N.D. Ohio Aug.
31, 2012) at pp. 7-8 (Adams, J.) (unpublished opinion) (reviewing filings in this Court and
noting that, in 11 cases, Counsel devoted a total of 156.45 hours on the issue of his
hourly rate).
Here, Plaintiff requests compensation for hours Counsel expended on an issue
16

that Counsel has frequently litigated in this Court. The affidavits that accompany
Plaintiff’s reply brief are dated November 15, 2012; July 26, 2012; and July 30, 2012.6
(Doc. Nos. 26-1, 26-2, 26-3.)

A review of this Court’s docket reflects that Counsel has

filed these affidavits – as well as the other documents in support of the reply brief – at
least three other times prior to filing the reply brief in this case. See Montanez v.
Comm’r, No. 1:11-CV-2475 at Doc. No. 25 (March 1, 2013); Teeter v. Comm’r, No. 1;11CV-2376 at Doc. No. 31 (Feb. 4, 2013); Kincaid v. Comm’r, No. 1:12-CV-385 at Doc. No.
18 (Nov. 21, 2012). Further, because Plaintiff does not itemize the time Counsel
expended on preparing the reply brief – he alleges only that Counsel spent five hours on
March 22, 2103 preparing and researching the brief – this Court cannot ascertain
precisely how that time was spent. The purpose of the EAJA is to “eliminate for the
average person the financial disincentive to challenge unreasonable government action.”
Comm’r v. Jean, 496 U.S. 154, 163 (1990). That purpose, however, “does not permit a
prevailing party’s attorney to proceed as if he has a blank check in hand, nor does it
permit Counsel to request fees multiple times for the research and preparation of a brief
that is largely a cut and paste from case to case.” Jones, No. 1:10-CV-2568 at 4.
Because it is not apparent that Counsel was required to perform work either researching
a new issue or preparing new documents to support Plaintiff’s EAJA Application, this
Court denies Plaintiff’s request for a supplemental award under the EAJA for the time

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The affidavits that accompany Plaintiff’s reply are photocopies. Further,
two of the affidavits predate this Court’s opinion remanding the case to
the Commissioner. Accordingly, it does not appear that Counsel was
required to draft and/or obtain newly executed originals to support
Plaintiff’s Reply.
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Counsel expended preparing the reply brief in this case.
D.

Calculation of Plaintiff’s EAJA Award
Plaintiff’s counsel expended a total of 22.9 hours on services rendered through

Plaintiff’s initial EAJA application. Plaintiff will be compensation for those hours at a rate
of $180.54 per hour, for a total of $4,134.37.
Plaintiff’s counsel expended a total of 5.0 hours on services rendered with respect
to the reply in support of the EAJA Application. This Court denies Plaintiff’s request for
compensation for that time.
Shriver expended a total of 2.7 hours on services rendered through Plaintiff’s
initial EAJA Application, and Plaintiff requested that he be compensated at a rate of
$50.00 per hour for her services. This Court concludes that 0.8 hours of that time was
noncompensable, and that $40.00 per hour is a reasonable rate for Shriver’s services.
Accordingly, Plaintiff will be compensated for 1.9 hours at a rate of $40.00 per hour, for
a total of $76.00.
Finally, this Court denies Plaintiff’s request for costs associated with copying in
this case. Accordingly, as outlined below, Plaintiff’s total award under the EAJA is
$4,210.37. This award is reasonable and appropriate under the circumstances of this
case.
Hours
Requested

Hours
Approved

Rate/Value
Requested

Rate/Value
Approved

Award
Approved

Counsel
(initial app.)

22.9

22.9

$184.38

$180.54

$4,134.37

Counsel
(reply brief)

5.0

0.0

$184.38

Denied

Denied

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Shriver

2.7

1.9

$50.00

Totals
E.

47.5

$76.00

$29.50

Costs

$40.00
Denied

Denied

24.8

$4,210.37

To Whom the EAJA Award Should Be Made Payable
Plaintiff indicated in his initial EAJA application that he assigned his right to be

paid to his attorney pursuant to a fee agreement. However, pursuant to Astrue v. Ratliff,
130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010), any EAJA award should be made payable to
Plaintiff and not his attorney so that any pre-existing debt owed by Plaintiff to the
government may be subject to administrative off-set. Accordingly, counsel first shall
determine whether Plaintiff owes a pre-existing debt subject to offset; if there is no preexisting debt or the debt is less than the amount of the EAJA fee award, the balance of
the EAJA fee award shall be made payable to Plaintiff’s counsel per the assignment in
the record.
III.

CONCLUSION

For the foregoing reasons, Plaintiff is awarded a total of $4,210.37, of which
$11.80 is for costs pursuant to 28 U.S.C. § 2412(a)(1), to fully satisfy all reasonable
attorney’s fees, expenses, and costs incurred under EAJA.

s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: April 10, 2013

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