McManus v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order: For the reasons set forth herein, the parties' joint motion for an award of attorney fees under the Equal Justice Act (EAJA), pursuant to 28 U.S.C. Section 2412, in the amount of $6,270.00 is approved, and the amount shall be paid in accordance with the procedure outlined above. (Related Doc. No. 19 ). Judge Sara Lioi on 3/20/2019. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT E. MCMANUS,

PLAINTIFF,
vs.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
DEFENDANT.

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CASE NO. 1:17-CV-789

JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

Before the Court is the parties’ joint motion for an award of attorney fees under the Equal
Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc. No. 19 [“Mot.”]); and Plaintiff’s Counsel’s
Response to Court’s Order (Doc. No. 20 [“Resp.”].) For the reasons and in the manner set forth
herein, the motion is granted and the award of attorney fees is approved.
I. BACKGROUND
On April 13, 2017, plaintiff Robert E. McManus (“McManus”) filed this action seeking
judicial review of the final decision of defendant Nancy A. Berryhill, Acting Commissioner of
Social Security (“Commissioner”), denying his application for disability benefits. (Doc. No. 1
(Complaint).) On April 9, 2018, the magistrate judge issued his report and recommendation
(“R&R”), recommending that the Commissioner’s decision be vacated and that this matter be
remanded. (Doc. No. 15 (R&R).) On April 20, 2018, the Commissioner filed a notice indicating
that she would not be filing objections to the R&R. (Doc. No. 16.) On April 25, 2018, the Court
entered a memorandum opinion and judgment entry adopting the R&R, reversing the

Commissioner’s decision, and remanding this action to the Commissioner, pursuant to 42 U.S.C.
§ 405(g), for further proceedings. (Doc. No. 17 (Memorandum Opinion); Doc. No. 18 (Judgment
Entry).)
On July 25, 2018, the parties filed the present joint motion for attorney fees. (Doc. No.
19.) The Court directed the parties to file documentation to support their motion, which
McManus’s counsel filed on March 14, 2019. (See Resp.) By their joint motion, the parties seek
an EAJA award in the amount of $6,270.00, which the parties indicate represents a compromise
of disputed positions and will fully satisfy any and all of McManus’s claims for fees, costs, and
expenses under the EAJA. (Mot. at 685.)
II. DISCUSSION
The EAJA requires the government to pay a prevailing plaintiff’s 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, 554 (6th Cir. 2004). There is no dispute here that the government’s
position was not substantially justified and that McManus is the “prevailing party” under the
EAJA. See Hammock v. Comm’r of Soc. Sec., No. 1:12-CV-250, 2015 WL 7292750, at *1 (S.D.
Ohio Oct. 26, 2015), report and recommendation adopted sub nom, 2015 WL 7276087 (S.D.
Ohio Nov. 18, 2015) (“A plaintiff who wins a remand of [his] social security appeal in this Court
is a ‘prevailing party[.]’”).
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”). The EAJA provides that the amount of an attorney fee
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award shall be based upon prevailing market rates, but shall not exceed $125 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).
Documentation submitted by McManus’s counsel shows 39.7 hours of legal services
performed between March 14, 2017 and May 25, 2018 (including the typical legal services of
reviewing the administrative record, telephone calls, reviewing court orders, drafting pleadings
and briefs, and the like). (Doc. No. 20-1 (Billing Sheet).) McManus’s counsel’s affidavit
indicates that counsel agreed to reduce his hours to 33 for purposes of resolution. (Doc. No. 20-3
(Affidavit of Attorney Karl E. Osterhout) ¶ 7.) The Court finds reasonable both the amount, as
amended by counsel, and the nature of the legal services performed.
McManus’s counsel’s affidavit also reflects an hourly billing rate of $ 350.00 for
services. (Id. ¶ 6.) The Affidavit further provides, however, that counsel agreed to reduce his
billing rate to $190.00 for purposes of this joint motion. (Id. ¶ 7.) This reduced rate is still an
upward departure from the $125.00 statutory cap. It is common, although not required, to adjust
the statutory hourly rate to account for cost of living increases since 1996, the time when that
rate was last capped. 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 rates proposed by counsel comport with the measure of inflation in this geographic
region (i.e., the “Midwest Urban” Consumer Price Index (“CPI”)). Crenshaw v. Comm’r of Soc.
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Sec., No. 1:13CV1845, 2014 WL 4388154, at *3 (N.D. Ohio Sept. 5, 2014) (collecting cases).
In light of these facts, the Court finds that the stipulated award of $6,270.00 is both
reasonable and adequately reflective of “the prevailing market rates for the kind and quality of
services furnished[.]” 28 U.S.C. § 2412(d)(2)(A). This award will be in full satisfaction of any
and all of McManus’s claims for fees, costs, and expenses, and is subject to setoff to satisfy any
pre-existing debt owed by McManus to the United States. See Astrue v. Ratliff, 560 U.S. 586,
130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010).
The Commissioner is directed to determine, within 30 days from the date of this Order,
whether McManus owes any pre-existing debt to the United States, to offset any such debt
against the award granted herein, and to generate an invoice for any balance that directs the
Department of Treasury to pay that balance to McManus’s attorney pursuant to the attorney fees
assignment duly signed by McManus and his counsel. (See Doc. No. 20-2.)
III. CONCLUSION
For the reasons set forth herein, the parties’ joint motion for an award of EAJA attorney
fees pursuant to 28 U.S.C. § 2412 in the amount of $6,270.00 is approved, and the amount shall
be paid in accordance with the procedure outlined above.
IT IS SO ORDERED.

Dated: March 20, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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