Moores v. Commissioner of Social Security
Filing
21
OPINION AND ORDER granting in part and denying in part 20 Plaintiff's Motion for Attorney Fees and Expenses Under the Equal Access to Justice Act. The Court AWARDS to Plaintiff attorney fees in the amount of $2,125.00 under 28 U.S.C. 67; 2412(d) and costs in the amount of $350.00 under 28 U.S.C. § 2412(a)(1), for a total award of $2,475.00, such award to be credited toward Plaintiff attorney's contingency fee should she ultimately receive the disability insurance benefits attendant to this claim that she is litigating on behalf of her deceased son. Signed by Judge S Arthur Spiegel on 11/18/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THERESA MOORES,
O/B/O JOSEPH COMELLO
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Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
This
matter
is
before
No. 1:12-cv-00148
the
Court
OPINION AND ORDER
on
the
Application
by
Plaintiff, through Counsel, for Fees and Expenses (and Costs)
under the Equal Access to Justice Act (“EAJA”) (doc. 20), to
which Defendant has not responded.
Plaintiff asks for a total
award of $2,560.00, specifically $2,210.00 for fees ($0.00 for
expenses) pursuant to 28 U.S.C. § 2412(d) and $350.00 for costs,
as provided in 28 U.S.C. § 2412(a)(1).
Plaintiff seeks an award of fees and costs on the bases
that she is a prevailing party (see doc. 20 at 4, citing Shalala
v. Schaefer, 509 U.S. 292, 301-02 (1993)) and her allegation
that the position of the United States in this litigation was
not substantially justified1 (see doc. 20 at 4-5).
Plaintiff’s
The EAJA requires that a fee applicant allege that “the position
of the United States was not substantially justified.” 28
U.S.C. § 2412(d)(1)(B). But “[t]he burden of establishing ‘that
the position of the United States was substantially justified[]’
. . . must be shouldered by the Government.” Scarborough v.
1
1
attorney
has
attached
to
the
instant
Application
his
own
affidavit in which he details his professional experience as a
social security disability law practitioner (doc. 20, Attachment
1),
as
well
as
an
itemized
report
of
the
time
he,
and
an
attorney previously associated with his firm, have spent on this
matter (doc. 20 at 9 (Plaintiff’s Schedule A))2.
He asks, on
Plaintiff’s
13.00
behalf,
that
this
Court
approve
the
hours
diaried at an adjusted average hourly rate of $170.00.
By its terms the EAJA limits attorney fees to $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.”
Commissioner
28
has
U.S.C.
not
§
2412(d)(2)(A)(ii).
challenged
the
$170.00
Notably,
hourly
the
rate
requested and we recognize that we previously have awarded fees
at this hourly rate to another attorney currently associated
with the firm that represents Plaintiff (see, e.g., Foster v.
Principi, 541 U.S. 401, 414-15 (2004) (construing 28 U.S.C. §
2412(d)(1)(A)) (quoting Pierce v. Underwood, 487 U.S. 552, 567
(1988) (emphasis added)). In this case, Defendant’s failure to
file any response to Plaintiff’s Application obviously amounts
to a failure to meet its burden.
2
Plaintiff was represented originally by Eric P. Allen of the
O’Connor, Acciani & Levy firm when the Complaint was filed in
February 2012 (see doc. 1). By the time this case was
reinstated to this Court’s docket in January 2014, Mr. Allen was
no longer associated with that firm. Thus, Henry D. Acciani
entered an appearance on Plaintiff’s behalf and was substituted
as her counsel. (See doc. 12.)
2
Comm’r of Soc. Sec., No. 1:13-cv-418 (S.D. Ohio Oct. 23, 2014)
(doc. 21); Godby-Dean v. Comm’r of Soc. Sec., No. 1:12-cv-734
(S.D. Ohio Apr. 4, 2014) (doc. 27); Tennyson v. Comm’r of Soc.
Sec., No. 1:10-cv-160 (S.D. Ohio Sept. 21, 2011) (doc. 27)), as
has at least one of our other colleagues sitting in the Western
Division (see, e.g., Wagner v. Comm’r of Soc. Sec., No. 1:10-cv784, 2012 WL 1224736, at *2 (S.D. Ohio Apr. 11, 2012) (Report &
Recommendation), adopted, 2012 WL 1656973, at *1 (S.D. Ohio May
10,
2012)
(Dlott,
J.)).
In
similar
fashion,
we
also
have
awarded the same hourly rate (or higher) to other members of the
local social security disability bar (see, e.g.,
Schott v.
Comm’r of Soc. Sec., No. 1:12-cv-918 (S.D. Ohio Mar. 18, 2014)
(doc. 21); Zellner v. Astrue, No. 1:10-cv-812 (S.D. Ohio Jan.
30, 2012) (doc. 16)), as have certain of our colleagues sitting
in the Western Division (see, e.g., Caldwell ex rel. K.S. v.
Comm’r of Soc. Sec., No. 1:12-cv-743, 2013 WL 4830953, at *8
(S.D. Ohio Sept. 13, 2013) (Report & Recommendation (gathering
cases)), adopted, 2013 WL 5521960, at *1 (S.D. Ohio Oct. 3,
2013) (Dlott, J.); Childers v. Astrue, No. 3:10-cv-154, 2011 WL
3911098 (S.D. Ohio Sept. 6, 2011) (Black, J.)).
Upon consideration, the Court finds that the hours diaried
are reasonable with one minor exception.
On February 22, 2012,
counsel (then, Mr. Allen) recorded that he spent time reviewing
an answer and transcript; however, the docket sheet reveals that
3
neither an answer nor transcript was filed by Defendant on or
about that date.
Instead, on April 5, 2012 Defendant filed a
motion for a sentence six remand under Section 405(g) (see doc.
7), which counsel’s timesheet indicates he received and reviewed
the very same date.
Consequently, the Court will deduct the .5
hours attributed to the erroneous February 12, 2012 entry, but
finds the remaining hours, 12.5, as well as the amount sought
per
hour,
$170.00,
to
be
reasonable.
Therefore,
the
Court
GRANTS IN PART Plaintiff’s Application for Fees and Expenses
(and Costs) and AWARDS to her attorney fees in the amount of
$2,125.00 under 28 U.S.C. § 2412(d) and costs in the amount of
$350.00
under
28
U.S.C.
$2,475.00,
such
award
contingency
fee
should
insurance
benefits
§
to
2412(a)(1),
be
she
credited
ultimately
attendant
to
this
for
a
total
award
toward
her
attorney’s
receive
the
disability
claim
that
she
litigating on behalf of her deceased son.
SO ORDERED.
Dated: November 18, 2014
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
4
of
is
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