Sutton v. Commissioner of Social Security

Filing 15

DECISION AND ENTRY GRANTING PLAINTIFF'S MOTION FOR ATTORNEY FEES (Doc. 14 ) AND AWARDING $3,394.73 IN FEES. Signed by Judge Timothy S. Black on 12/11/2012. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KEINDE SUTTON,
Plaintiff,
vs.
MICHAEL ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 3:11-cv-424
Judge Timothy S. Black

DECISION AND ENTRY GRANTING PLAINTIFF’S MOTION FOR ATTORNEY
FEES (Doc. 14) AND AWARDING $3,394.73 IN FEES
This case is a Social Security disability benefits appeal under which the Court
remanded the case for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).
(Doc. 12). Seeking to be compensated for the legal expenses incurred in obtaining the
remand, Plaintiff has a Motion for Attorney Fees (Doc. 14) under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412. Defendant, the Commissioner of Social Security
(“Commissioner”), did not file any opposition to Plaintiff’s Motion for Attorney Fees and the
time for doing so has expired. Plaintiff’s Motion is now ripe.
The EAJA originally provided that attorney fees be limited to a rate of $75.00 an 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 proceeding involved, justifies a higher
fee.” 29 U.S.C. § 2412(d)(2)(A). In 1996, Congress increased the rate payable for EAJA
fees to $125.00 per hour for civil actions filed after March 29, 1996. The Contract with
America Advancement Act of 1996, Pub.L. 104-121, 110 Stat. 852, 853 (Mar. 29, 1996).
The Sixth Circuit has recognized that the EAJA allows for a cost-of-living adjustment.

Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 199 (6th Cir. 1992). Additionally,
while recognizing that although adjustments in EAJA fees due to increases in the Consumer
Price Index are sometimes seen as essentially perfunctory or even mandatory, the Sixth
Circuit leaves the matter to the sound discretion of the district court. Id. The 1996 EAJA
language continues to provide for such an increase. 28 U.S.C. § 2412(d)(2)(A).
The Consumer Price Index (“CPI”) is the best indicator for computing the increase in
the cost of living. The CPI All Items Index average was 155.7 in March 1996, when the
statutory cap of $125.00 was set. This Court recently concluded that an hourly rate of
$182.50 falls within the EAJA’s reasonable allowable fee. Smith v. Astrue, No.
3:11–cv–221, 2012 WL 3731660 (S.D. Ohio Aug. 28, 2012). Here, Plaintiff seeks an award
of $3,394.73 for 19.25 compensable hours, resulting in an hourly fee of $176.35. Such a rate
falls within the EAJA’s reasonable allowable fee, and therefore, under the facts of this case,
an EAJA fee of $3,394.73 is appropriate.
Accordingly, Plaintiff’s Motion (Docs. 14) is GRANTED and Plaintiff is AWARDED
the sum of $3,394.73 in reasonable attorney fees.1
IT IS SO ORDERED.

s/ Timothy S. Black
Timothy S. Black
United States District Judge

Date: December 11, 2012

1

Any fees paid belong to Plaintiff and not his attorney and can be offset to satisfy pre-existing debt that the
litigant owes the United States. Astrue v. Ratliff, 130 S. Ct. 2521 (2010). However, if counsel for the parties can
verify that Plaintiff does not owe any pre-existing debt subject to offset, Defendant has not opposed, and the Court
permits, the request that the award be directed to Plaintiff’s attorney.

2