Hays v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATIONS re 22 MOTION for Attorney Fees Pursuant To The Equal Access to Justice Act filed by Jeffrey W. Hayes, Sr. Objections to R&R due by 2/20/2015. Signed by Magistrate Judge Michael J Newman on 2/2/2015. (ead1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEFFREY W. HAYES, SR.,
Plaintiff,

Case No.: 3:13-cv-247

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.
REPORT AND RECOMMENDATION1

This case is before the Court on Plaintiff’s motion for attorney’s fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), requesting attorney’s fees in the amount of
$6,000 and $400 in costs -- the $400 Court filing fee. Doc. 22. The Commissioner did not file a
memorandum in response to Plaintiff’s motion, and the time for doing so has expired.

The

undersigned has carefully considered Plaintiff’s unopposed motion and the attachments thereto, and
the motion for attorney’s fees is now ripe for decision.
EAJA provides for an award of attorney’s fees to a party who prevails in a civil action
against the United States “when the position taken by the Government is not substantially justified
and no special circumstances exist warranting a denial of fees.” Bryant v. Comm’r of Soc. Sec., 578
F.3d 443, 445 (6th Cir. 2009) (citing 28 U.S.C. § 2412(d)(1)(A)). A party who prevails and obtains
a Sentence Four remand is a prevailing party for EAJA purposes. See Shalala v. Schaefer, 509 U.S.
292, 301-02 (1993). EAJA fees are payable to the litigant. Astrue v. Ratliff, 586 U.S. 586, 589
(2010). Costs are also compensable under EAJA. 28 U.S.C. § 2412(a).
1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

Judge Rose, upon consideration of the undersigned’s Report and Recommendation (doc.
15), reversed the Commissioner’s non-disability finding and remanded this case to the
Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for further administrative
proceedings. Doc. 20. Accordingly, Plaintiff is the prevailing party in this case for EAJA purposes
and, therefore, is entitled to an award of attorney’s fees under EAJA. See Shalala, 509 U.S. at 30102.
Plaintiff’s counsel advises the Court that she worked 61.50 hours on this case. Doc. 22-1 at
PageID 1435-43. At the requested amount of $6,000.00, this calculates as $97.56 per hour -- an
hourly rate that has not been challenged by the Commissioner. Having reviewed the time sheet
entries submitted by Plaintiff’s counsel and considering the nature of the work counsel performed in
this case, the Court finds both the hourly fee and the time expended reasonable. Compare Kash v.
Comm’r of Soc. Sec., No. 3:11-CV-44, 2012 WL 3636936, at *1 (S.D. Ohio Aug. 21, 2012) (finding
an hourly rate of $176.36 reasonable in an EAJA fee application). Accordingly, Plaintiff is entitled
to an EAJA fees award in the amount of $6,000.00 and $400 in costs.
III.
Based upon the foregoing analysis, IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s unopposed motion for an EAJA fee award (doc. 17) be GRANTED;

2.

Plaintiff be AWARDED the sum of $6,000 in EAJA fees and $400 in costs;
and

3.

As no further matters remain pending for review, this case remain
TERMINATED upon the Court’s docket.

Date: February 2, 2015

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

-2-

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within FOURTEEN days after being served with this
Report and Recommendation.

Pursuant to Fed. R. Civ. P. 6(d), this period is extended to

SEVENTEEN days because this Report and Recommendation is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be extended further
by the Court on timely motion for an extension. Such objections shall specify the portions of the
Report and Recommendation objected to, and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part upon
matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond
to another party’s objections within FOURTEEN days after being served with a copy thereof. As
is made clear above, this period is likewise extended to SEVENTEEN days if service of the
objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).