Coss v. Commissioner of Social Security
Filing
21
REPORT AND RECOMMENDATION that 19 First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 be granted and that Plaintiff be awarded the sum of $5,860.95 to be paid to counsel for Plaintiff unles s there is an offsetting debt owed to the United States. It is further recommended that absent a supplemental motion for fees which provides evidence of the market rate for social security paralegals in this District, no award be made for such costs. Objections to R&R due by 3/14/2016. Signed by Magistrate Judge Terence P. Kemp on 2/24/2016. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robin Marie Coss,
:
Plaintiff,
:
v.
:
:
Commissioner of Social Security,
Case No. 2:15-cv-2222
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
:
Defendant.
REPORT AND RECOMMENDATION
In an order filed on July 7, 2015, this case was remanded to
the Commissioner pursuant to 42 U.S.C. §405(g), sentence four.
On August 4, 2015, Plaintiff filed a motion for attorneys’ fees
under the Equal Access to Justice Act, 28 U.S.C. §2412.
Despite
the passage of time for filing a responsive memorandum, the
Commissioner has not responded.
It is the Commissioner’s burden, in response to a motion for
fees under the EAJA, to demonstrate that the Commissioner’s
litigation position was substantially justified.
See Miller v.
United States, 831 F. Supp. 1347, 1351 (M.D. Tenn. 1993) ("The
burden lies with the government to demonstrate that its position
was substantially justified ...."); Weber v. Weinberger, 651
F.Supp. 1379, 1388 (E.D. Mich. 1987) ("with respect to an
application for attorney's fees the Government has the burden of
showing that its position was substantially justified").
In the
absence of an opposing memorandum, the Commissioner cannot
satisfy that burden.
See, e.g., Libas, Ltd. v. United States,
314 F.3d 1362, 1366 (Fed. Cir. 2003)(“when the government fails
to advance any reasoning showing its position was substantially
justified, the court ... may grant the motion by relying on the
government's failure to timely submit any evidence or explanation
to carry its burden of proving its position was substantially
justified as an admission ...”).
Consequently, the Court must
find that the Commissioner’s litigation position was not
substantially justified.
Once it has been determined that a social security claimant
is entitled to fees under the EAJA, the only remaining questions
are the reasonableness of the hours expended and whether the
hourly rate falls within the statutorily-authorized range.
Plaintiff seeks $5,860.95 for 31.65 hours of attorney time,
billed at the rate of $185.18 per hour and $656.00 for 8.2 hours
of paralegal time billed at the hourly rate of $80.00 per hour.
As far as the hourly rate is concerned, the Court of
Appeals, in Bryant v. Comm’r of Social Security, 578 F.3d 443,
350 (6th Cir. 2009), has said that “[i]n requesting an increase
in the hourly-fee rate, Plaintiffs bear the burden of producing
appropriate evidence to support the requested increase.”
must be done through “satisfactory evidence ....”
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
This
Id., quoting
This Court has
often required a prevailing social security plaintiff to submit
such evidence, typically taking the form of an affidavit as to
the attorney’s usual billing rate, the prevailing rate in the
community, and the increase in the cost of living index.
See,
e.g., Oblinger v. Astrue, 2012 WL 3224100 (S.D. Ohio Aug. 6,
2012).
Plaintiff has submitted documentation addressing these
factors.
The Court is satisfied that this documentation meets
the “satisfactory evidence” requirement and that an award at the
requested rates is appropriate.
The hours billed are also
reasonable and not contested by the Commissioner.
The fee application does not, however, address the rate at
which the paralegal services are being billed.
Paralegal
services are compensable at market rates under the EAJA.
Richland Security Service Co. v. Chertoff, 553 U.S. 571 (2008).
However, there must be some evidence before the Court as to the
-2-
prevailing market rate.
See, e.g., Hawk v. Astrue, 2013 WL
139799 (N.D. Ohio Jan. 10, 2013)(awarding paralegal fees at
market rate based on a publication from the National Association
of Legal Assistants).
Without some type of evidence, any award
for paralegal time would be based on mere speculation.
It is therefore recommended that Plaintiff’s Application for
Attorney Fees under the Equal Access to Justice Act (EAJA) (Doc.
19) be granted and that Plaintiff be awarded the sum of $5,860.95
to be paid to counsel for Plaintiff unless there is an offsetting
debt owed to the United States.
It is further recommended that
absent a supplemental motion for fees which provides evidence of
the market rate for social security paralegals in this District,
no award be made for such costs.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
A judge
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
-3-
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?