Dominguez v. Commissioner of Social Security

Filing 25

Order: The parties' joint motion for an award of Equal Access to Justice Act attorney fees and costs pursuant to 28 U.S.C. Section 2412 in the amount of $5,628.07 is granted. This amount shall be paid in accordance with the procedure outlined above. (Related Doc. No. 24 ). Judge Sara Lioi on 2/14/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

VELVIE DOMINGUEZ,
PLAINTIFF,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
DEFENDANT.

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CASE NO. 1:16-cv-2769
JUDGE SARA LIOI

ORDER

This matter is before the Court on the parties’ joint motion for an award of attorney fees
and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of
$5,628.07. (Doc. No. 24 [“Mot.”].) For the reasons that follow, the motion is granted.
A. Background
Plaintiff Velvie Dominguez (“Dominguez”) filed this action on November 14, 2016,
seeking review of the Commissioner of Social Security’s (“Commissioner”) decision denying her
application for Social Security disability benefits for lack of disability. (Doc. No. 1.) The Court
adopted the recommendation of the magistrate judge (to which the Commissioner did not object)
that the Commissioner’s decision be vacated and remanded for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). (Doc. Nos. 20, 21, 22, 23.)
According to the motion, the parties’ agreement represents a compromise and settlement
of disputed positions, and fully satisfies all of Dominguez’s fees, costs, and expenses under 28
U.S.C. § 2412. (Mot. at 1355.1) The motion acknowledges that the award of fees and costs is

All references to page numbers are to the page identification numbers generated by the Court’s electronic filing
system.
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subject to offset by any outstanding federal debt owed by Dominguez pursuant to Astrue v. Ratliff,
560 U.S. 586, 130 S. Ct. 2521, 117 L.Ed.2d 91 (2010). (Id.) The parties further agree that, to the
extent the award is not subject to offset by pre-existing debts to the United States, the
Commissioner will direct that the award be made payable to Dominguez’s counsel pursuant to the
attorney fee assignment between plaintiff and her counsel. (Id. at 1355-56.)
B. Discussion
The EAJA requires the government to pay a prevailing social security plaintiff’s reasonable
attorney fees and costs “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); see Howard v. Barnhart, 376 F.3d 551, 553-54 (6th Cir. 2004). The Commissioner
does not contend that the government’s position was substantially justified,2 and there is no dispute
that plaintiff is the “prevailing party” under the EAJA.3
Although the parties have stipulated to the amount of an award, the Court must still
examine it for reasonableness. 28 U.S.C. § 2412(d)(2)(A) (“fees and other expenses” includes,
inter alia, “reasonable attorney fees”). Documentation submitted by the parties in support of the
motion shows 29.9 hours of legal services were performed by counsel between November 3, 2016
and February 1, 2018, including the typical legal services of preparing the complaint, reviewing
the administrative record, communication and correspondence, research and briefing, reviewing
court orders, and the like. (Doc. No. 24-1.) The Court finds that both the nature of the legal services
and the number of hours expended to be reasonable in this case.
It is the government’s burden under the EAJA to show that its position denying benefits was substantially justified.
Wilson v. Astrue, No. 2:10-CV-463, 2011 WL 3664468, at *1 (S.D. Ohio Aug. 19, 2011) (citations omitted).
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“Prevailing party” status is achieved within the meaning of the statute when a plaintiff succeeds in securing a sentence
four remand order. Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993).
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Dividing the number of hours expended into the stipulated fee award results in an hourly
rate of $188.23. The EAJA provides that the amount of an attorney fee award shall be based on
prevailing market rates, but shall not exceed $125.00 per hour unless the Court determines that the
cost of living or special factors justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A)(ii).
Although not required, the statutory hourly rate is commonly adjusted to account for cost
of living increases since 1996—the year when rate of $125.00 was established. See Gisbrecht v.
Barnhart, 535 U.S. 789, 796 n. 4, 122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002) (“A higher fee may
be awarded if ‘the court determines that an increase in the cost of living . . . justifies a higher fee.’”)
(quoting 28 U.S.C. § 2412(d)(2)(A)(ii)); see also Hutchinson v. Colvin, No. 1:15–cv–1144, 2016
WL 6777804, at *2 (N.D. Ohio Nov. 16, 2016) (examining the appropriateness of a cost of living
increase).
The appropriate measure of inflation in this geographic area is the “Midwest Urban” CPI.4
Crenshaw v. Commissioner of Social Security, No. 1:13CV1845, 2014 WL 4388154 at *3 (N.D.
Ohio Sept. 5, 2014) (collecting cases). The Court finds that an hourly rate of $188.23, considering
adjustments for cost of living increases since the enactment of the EAJA, is both supportable and
reasonable. See 28 U.S.C. § 2412(d)(2)(A); see also Perkins v. Colvin, No. 1:14CV2213, 2016
WL 2927989, at *2 (N.D. Ohio Apr. 22, 2016), report and recommendation adopted, No. 1:14 CV
2213, 2016 WL 2829864 (N.D. Ohio May 13, 2016) (EAJA fees ranging from $175.00 to $184.25
found to be reasonable) (collecting cases).

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CPI is the acronym for Consumer Price Index. The Midwest Urban CPI may be found on the website of the Bureau
of Labor Statistics (http://www.bls.gov).

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Finally, the Court is not aware of any special circumstances that would make an attorney
fee award in this case unjust. Accordingly, the Court awards to Dominguez attorney fees and costs
in the amount of $5,628.07.
As the parties acknowledge, EAJA attorney fees are subject to offset to satisfy any preexisting federal debt owed by Dominguez. Within 30 days from the date of this Order, counsel
shall verify whether Dominguez owes a pre-existing debt to the government, and any such debt
will be offset against the EAJA award granted herein. The Commissioner will direct that any award
be made payable to the plaintiff’s attorney pursuant to the attorney fee assignment between them
(see Doc. No. 24-2), and will direct the Treasury Department to mail any check to the business
address of plaintiff’s counsel.
C. Conclusion
For all of the foregoing reasons, the parties’ joint motion for an award of EAJA attorney
fees and costs pursuant to 28 U.S.C. § 2412 in the amount of $5,628.07 is granted. This amount
shall be paid in accordance with the procedure outlined above.
IT IS SO ORDERED.

Dated: February 14, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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