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Dubois v. Social Security Administration

United States District Court, E.D. Louisiana

November 18, 2014

KELLIE M. DUBOIS,
v.
SOCIAL SECURITY ADMINISTRATION, Section

ORDER

DANIEL E. KNOWLES, III, Magistrate Judge.

Before the Court is a Petition for Attorney's Fees [Doc. #30] filed by plaintiff, Kellie M. Dubois, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The motion is opposed. For the reasons stated below, it is ORDERED that the motion be GRANTED IN PART, in that the Commissioner is ordered to pay attorney's fees in the amount of $5, 775.00 (33 hours at $175.00 per hour).[1]

I. The EAJA and Number of Hours Claimed

The EAJA provides that a court shall award attorney's fees and costs to a prevailing party in a civil action brought against the United States unless the court finds that the position of the government was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). A party who obtains a remand of a social security appeal pursuant to the fourth sentence of Section 405(g) - such as occurred here - qualifies as a prevailing party for purposes of fees under the EAJA. Breaux v. U.S.D.H.H.S., 20 F.3d 1324 (5th Cir. 1994). The prevailing party is entitled to fees unless the government meets its burden of showing that its position was substantially justified or that special circumstances make an award unjust. Baker v. Bowen, 839 F.2d 1075, 1080 (5th Cir. 1988).

Plaintiff asks the Court for an award of $5, 775.00 in attorney's fees under the EAJA for 33 hours of work performed at a rate of $175.00 per hour. The government opposes only two facets of plaintiff's claim: (1) the $175.00/hour rate charged by counsel for plaintiff; and (2) that the fees be paid directly to counsel for plaintiff.

II. Hourly Rate

In the petition, plaintiff's attorney seeks to recover fees at an hourly rate of $175.00. For the following reasons, the Court finds that such an hourly rate is appropriate under the EAJA in this district. Louisiana federal courts have noted that the EAJA provides in relevant part that the amount of fees awarded

shall be based upon prevailing market rates for the kind and quality of the services furnished, except that... 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... justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A).

The EAJA "vests the district courts with discretion to arrive at a reasonable rate for attorneys' fees based on cost-of-living adjustments and other factors." Yoes v. Barnhart, 467 F.3d 426, 426 (5th Cir. 2006) (citation omitted). Although courts are clearly authorized to figure cost of living increases into the hourly rate, courts within this district and within this state have often declined to award EAJA fees in excess of $125 per hour. See e.g., Passaro v. Barnhart, No. 04-1300, 2005 WL 1432368 (E.D. La. Mar. 27, 2005) (Barbier, J.) (finding that $125 fee satisfies the purposes of the act); Buras v. Barnhart, No. 01-618, 2004 WL 74315 (E.D. La. Jan. 14, 2004) (Zainey, J.) (collecting cases and finding that $125 is the accepted fee in the district); Knight v. Barnhart, No. 02-1741, 2003 WL 21467533 (E.D. La. June 20, 2003) (Vance, J.) (same); Jackson v. Barnhart, No. 01-1911, 2002 WL 927799 (E.D. La. May 7, 2002) (Barbier, J.) (same).

Only recently has this federal court awarded an hourly rate higher than $125. See Thibodeaux v. Astrue, 914 F.Supp.2d 789, 793 (E.D. La. 2012) (awarding hourly rate of $160 under the EAJA); Ramos v. Astrue, Civ. A. No. 11-1457, 2012 WL 3637868, *2 (E.D. La. Aug. 23, 2012) (awarding hourly rate of $150 under the EAJA); Williams v. Astrue, 2011 WL 5417116 (E.D. La. Oct. 14, 2011) (awarding hourly rate of $160.00 under the EAJA); Brown v. Astrue, Civ. A. No. 07-6933, 2008 WL 4186877 (E.D. La. Sept. 9, 2008) (same).

When a given locale has experienced a significant change in the cost of living, the court may increase the hourly rate beyond the nominal statutory cap. Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988). The rate need not precisely track the cost of living increase for the geographical area, but instead should be calculated "only to the extent necessary to ensure an adequate source of representation." Id.

The Fifth Circuit has held "that cost-of-living adjustments under the EAJA must be made to reflect the appropriate rate in the year in which the services were rendered." Perales v. Casillas, 950 F.2d 1066, 1076 (5th Cir. 1992). Therefore, EAJA fees must be adjusted yearly. To do otherwise "in effect award[s] interest for the... delay in payment" and "is a prohibited award of interest against the United States." Id. at 1076-77. According to the Court's calculation, the cost of living in this area increased approximately 49.68 per cent between March 1996, when Congress implemented the $125 cap, and November 2013, the mid-point of the year during which the majority of the instant services were rendered. See, e.g., Richards v. Astrue, Civ. A. No. 07-1020, 2008 WL 4544374 (W.D. La. Oct. 7, 2008) (noting that claimant argued that Consumer Price Index ("CPI") increased by 34.89 percent through December 2007).[2] This change is not insignificant. Increasing the $125 statutory cap by 49.68 per cent would result in an hourly rate of approximately $187.10. Absent other circumstances, however, the original $125 per hour reflected the maximum rate to be awarded under the EAJA. Thus, the CPI adjusted rate range of $187.10 contemplates the maximum rate that could be awarded today. Baker, 839 F.2d at 1084 (holding that increased rate may never exceed the percentage by which the market rate increased since statute enacted).

After due consideration of prevailing market conditions and the healthy community of social security practitioners in this area, the Court will to accept the hourly rate of $175.00 per hour for this EAJA petition and those filed in the near future. This Court accepted such an hourly rate in Cavin v. Social Security Administration and is not inclined to downwardly depart at this time. Civ. A. No. 12-1144, 2014 WL 28864 (E.D. La. Jan. 2, 2014); see also Brown v. Astrue, Civ. A. No. 07-6933, 2008 WL 4186877 (E.D. La. Sept. 9, 2008) (settling on an hourly rate of $150); see also Thibodeaux, 914 F.Supp.2d at 793 (awarding hourly rate of $160 under the EAJA); Williams v. Astrue, 2011 WL 5417116 (E.D. La. Oct. 14, 2011) (Knowles, ...


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