Barnett v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 15 Plaintiff's MOTION for Attorney Fees pursuant to EAJA. It is RECOMMENDED that Plaintiff's Motion for Attorney Fees be GRANTED and that Plaintiff be awarded fees and expenses in the amount of $4,001.25. Objections to R&R due by 1/24/2014. Signed by Magistrate Judge Stephanie K. Bowman on 1/7/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BEVERLY BARNETT,

Case No. 1:12-cv-532

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background

On September 27, 2013, Plaintiff, through counsel, filed a motion seeking an
award of $4001.25 in attorney’s fees pursuant to the Equal Access for Justice Act, 28
U.S.C. §2412 et seq. (Doc. 15). Shortly thereafter, Defendant moved for a stay of the
briefing schedule due to a temporary lapse in appropriations.

(Doc. 16).

The

undersigned granted the stay “until ten (10) days after appropriations are restored, at
which time the clock on a response deadline will resume.” (Doc. 17). On December 2,
2013, noting that appropriations had long since been restored with no response having
been filed, the undersigned directed the Commissioner to “move for leave to file a
belated response instanter on or before December 10, 2013,” noting further that “[i]f no
opposing memorandum is filed, the undersigned will file a report and recommendation
that addresses the Plaintiff’s unopposed fee motion.” (Doc. 18).
II.

Analysis

Defendant elected not to file any response and the undersigned has carefully
reviewed Plaintiff’s fee petition under the Equal Access for Justice Act. Pursuant to that

statute, it is clear that Plaintiff is a prevailing party entitled to an award of her fees and
expenses. 28 U.S.C. §2412(d)(1)(A). The court does not find that the position of the
United States was substantially justified, or that other circumstances would make an
award unjust. See id. The motion appears to have been timely filed, within thirty (30)
days after the judgment of this Court became final and non-appealable, and the number
of hours expended (24.5) is reasonable. In order to determine the total award then, the
Court must therefore determine the hourly rate to be used as a multiplier.
Under the EAJA, the amount of 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.” 28 U.S.C. §2412(d)(2)(A). A plaintiff seeking a higher
hourly rate bears the burden of producing appropriate evidence to support the
requested increase. Bryant v. Commissioner of Soc. Sec., 578 F.3d 443, 450 (6th Cir.
2009). A plaintiff must “produce satisfactory 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.”
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The Sixth Circuit has noted the
Congressional choice not to apply cost of living increases in reenacting the EAJA,
holding that “the statutory rate is a ceiling and not a floor.” Chipman v. Sec’y of HHS,
781 F.2d 545, 547 (6th Cir. 1986).
In this case, Plaintiff seeks compensation at the hourly rate of $165.00 per hour.
In support of this higher rate, counsel has submitted her own affidavit, evidence of
similar awards in this district, and a 2010 Ohio State Bar Association Survey of attorney
fee rates. The latter survey does not provide strong evidence of the prevailing hourly
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rates for social security cases, which traditionally are compensated at lower rates than
other civil cases. Nevertheless, in light of the reasonableness of the rate sought and
the fact that the fee petition is uncontested, the undersigned finds the evidence
submitted to be adequate to support the higher rate of $165.00 per hour. 1
Having determined that Plaintiff is entitled to a fee award under the EAJA of
$4001.25 (24.5 hours x 165.00 per hour), the only remaining issue is to identify the
party to whom that award should be made. In general, the fee award belongs to the
plaintiff and not to counsel. For that reason, the United States is entitled to an offset in
the event that a claimant owes a debt to the United States. See generally Astrue v.
Ratliff, 130 S. Ct. 2521 (2010). However, it is common for a claimant to execute an
assignment of any fee award to his or her attorney. Although Plaintiff has submitted
evidence of the assignment of any fee award to her attorney in this case, this Court is
without information concerning whether Plaintiff owes a debt to the United States.
The undersigned is persuaded by the decisions of a growing consensus of courts
within the Sixth Circuit that “[u]nder Ratliff, the proper course is to award fees directly to
Plaintiff and remain silent as to the direction of those fees.” Oliver v. Com’r of Soc.
Sec., 916 F.Supp.2d 834 (S. D. Ohio 2013)(collecting cases and quoting Cornell v.
Com’r of Soc. Sec., 2:11-cv-97, 2012 U.S. Dist. LEXIS 6115, at *6-7 (S.D. Ohio May 2,
2012)); accord Crim v. Com’r of Soc. Sec., 2013 WL 3367337 (Dlott, J., adopting same
approach over Objections); see also Cox v. Astrue, 927 F. Supp.2d 659 (E.D.

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Plaintiff should take note, however, that the Court has previously rejected motions seeking rates in
excess of $125 per hour where counsel failed to submit additional particularized evidence, such as
“results of a fee survey conducted by a state or local bar association committee comprised of lawyers in
the social security area of practice.” Scales v. Astrue, No. 1:10-cv-267, Doc. 36, R&R adopted at 2013
WL 2423995 at *5 (S.D. Ohio, June 3, 2013)(adopted by Dlott, J., quoting Zellner v. Astrue, 2012 WL
273937 (S.D. Ohio Jan. 31, 2012)).

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Ky.2013)(holding that under Astrue v. Ratliff, fees should be paid to litigants regardless
of whether the Commissioner shows that the plaintiff owes a federal debt or not).
The issue of Plaintiff’s assignment is a matter of contract law not presented as a
dispute before this Court. The fee award neither bars the United States from honoring a
valid assignment, nor prevents it from disputing it. Although language in prior R&Rs has
suggested that the United States “may” pay the fee directly to counsel once it confirms
that no debt is owed, even that language exceeds the scope of the dispute before this
Court and may improperly suggest an opinion about an unconsidered issue. See e.g.
Cox, 917 F. Supp.2d at 662 (suggesting that “any assignment of an EAJA award that
predates the actual award of fees is void” under the Anti-Assignment Act, additional
citations omitted).
III.

Conclusion and Recommendation

For the reasons explained herein, IT IS RECOMMENDED THAT Plaintiff’s
motion for attorney fees (Doc. 15) be GRANTED and that Plaintiff be awarded fees and
expenses in the amount of $4001.25.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BEVERLY L. BARNETT,

Case No. 1:12-cv-532

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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