United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
van Meerveld, United States Magistrate Judge.
the Court is the Motion for Attorney Fees filed by plaintiff
Maria Martina Rodriguez (Rec. Doc. 23) and automatically
referred to the undersigned. For the following reasons, it is
RECOMMENDED that the Motion be GRANTED.
23, 2018, Ms. Rodriguez filed a Complaint to review the
decision of the Commissioner of the Social Security
Administration denying her application for disability
insurance benefits under Titles II of the Social Security
Act, 42 U.S.C. § 1381. The undersigned ed the parties to
submit cross-motions for summary judgment. Ms. Rodriguez
filed her motion for summary judgment. Thereafter, the
Commissioner filed a Consent Motion to Remand the matter for
further proceedings. The motion was granted by the district
judge. Ms. Rodriguez now seeks her attorney fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. §2412. The Commissioner does not object to the
amount of the proposed EAJA fee or Ms. Rodriguez's
request for costs. However, the Commissioner has filed a
memorandum to raise certain issues concerning the method of
payment, which are discussed further below.
the EAJA, the Court shall award fees and other expenses to
the prevailing party in a civil action against the United
States, unless the position of the United States was
substantially justified or special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). When the
district court remands a Social Security appeal to the ALJ
for further findings, the Social Security claimant qualifies
as a prevailing party for purposes of fees under the EAJA.
See Breaux v. U.S. Dep't of Health & Human
Services, 20 F.3d 1325 (5th Cir. 1947);
Thibodeaux v. Astrue, 914 F.Supp.2d 789, 791 (E.D.
La. 2012). There is no dispute that Ms. Rodriguez is a
prevailing party entitled to an award of fees under the EAJA.
Rodriguez proposes an hourly rate of $175 for the attorney
fees award, and the Commissioner does not oppose this rate.
Attorney fees awarded pursuant to the EAJA are capped at $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)(1)(D). The United States Court of
Appeals for the Ninth Circuit posts a schedule of the maximum
EAJA each year accounting for “[a]ppropriate
cost-of-living increases, ” which it calculates
“by multiplying the $125 statutory rate by the annual
average consumer price index figure for all urban consumers
(“CPI-U”) for the years in which counsel's
work was performed, and then dividing by the CPI-U figure for
March 1996, the effective date of EAJA's $125 statutory
rate.” Thangaraja v. Gonzales, 428 F.3d 870,
876-77 (9th Cir. 2005). For work performed in 2018, the
posted maximum hourly rate is $201.60. See Statutory
Maximum Rates Under the Equal Access to Justice Act, United
States Courts for the Ninth Circuit (July 23. 2019, 3:44 PM),
In considering the maximum hourly rate, courts in this
district have also considered the increase in the cost of
living using the consumer price index. See,
e.g., Cook v. Berryhill, No. CV 17-1142,
2017 WL 2821907, at *4 (E.D. La. June 14, 2017), report
and recommendation adopted, No. CV 17-1142, 2017 WL
2812924 (E.D. La. June 29, 2017); Kolb v. Colvin,
No. CV 13-5085, 2016 WL 258621, at *2-3 (E.D. La. Jan. 21,
course, the statutory cap is a maximum and the actual award
may be at a lower rate. For example, in recent years, courts
in this district have regularly awarded attorney fees in
Social Security appeals at an hourly rate of $175.
See, e.g., Cook, 2017 WL 2821907,
at *4; Lasserre v. Berryhill, No. CV 15-6934, 2017
WL 914644, at *4 (E.D. La. Feb 16, 2017), report and
recommendation adopted, No CV 15-6934, 2017 WL 897841
(E.D. La. Mar. 7, 2017); Kolb, 2016 WL 258621, at
*2-3 (E.D. La. Jan. 21, 2016); Joiner v. Colvin, No.
CIV.A. 14-1315, 2015 WL 6442710, at *1 (E.D. La. Oct. 23,
2015). In light of the maximum rate calculated using the
consumer price index and the rates awarded by other courts in
this district for similar matters, the Court finds that Ms.
Rodriguez's proposed hourly rate of $175 per hour is
Rodriguez claims that her counsel spent 39.8 hours in
preparing her case. She seeks reimbursement for 34 of those
hours. She points out that her attorney's 31-page brief
convinced the Commissioner to stop defending the ALJ's
decision. An itemization of her counsel's time is
included. The Court finds the time spent to be reasonable.
Further, the Court notes that the Commissioner does not
challenge the reasonableness of the hours spent by Ms.
Rodriguez's counsel. Thus, Ms. Rodriguez's proposed
award of $5, 950 in attorneys' fees is appropriate.
Rodriguez seeks $500 in costs, which is equal to the $400
court filing fee plus the $100 court fee to appear pro
hac vice. The Commissioner does not oppose Ms.
Rodriguez's request. The court finds Ms. Rodriguez's
proposed award of $500 in costs is appropriate.
Rodriguez's proposed order provides that the total award
be paid directly to her counsel, David F. Chermol, Esquire
and sent to his office at Chermol and Fishman, LLC, 11450
Bustleton Avenue, Philadelphia, PA 19116. The proposed order
also states that payment is to be made “[s]ubject to
any offset under the Treasury Offset Program.” The
Commissioner submits that the award must be made payable to
Ms. Rodriguez, although it can be sent to her counsel's
office. Astrue v. Ratliff, 560 U.S. 586, 594 (2010)
(“EAJA fees are payable to litigants and are thus
subject to offset where a litigant has outstanding federal
debts.”). The Commissioner notes that he has not
received any valid assignment assigning Ms. Rodriguez's
right to this fee and cost award to her counsel. The
Commissioner also submits that the award will be made subject
to any offset to satisfy any pre-existing debt that Ms.
Rodriguez owes the United States. Id. The
Commissioner adds that recovery of the $500 in costs must be
paid from the Judgment Fund upon request from the Department
Rodriguez has not submitted a reply memorandum, and there
does not appear to be any basis to contest the
Commissioner's contentions. Accordingly, these ...