United States District Court, N.D. Ohio, Eastern Division
matter is before the Court on the parties' joint motion
for an award of attorney fees and costs under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412, in the amount of $5, 628.07. (Doc. No. 24
[“Mot.”].) For the reasons that follow, the
motion is granted.
Velvie Dominguez (“Dominguez”) filed this action
on November 14, 2016, seeking review of the Commissioner of
Social Security's (“Commissioner”) decision
denying her application for Social Security disability
benefits for lack of disability. (Doc. No. 1.) The Court
adopted the recommendation of the magistrate judge (to which
the Commissioner did not object) that the Commissioner's
decision be vacated and remanded for further proceedings
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc.
Nos. 20, 21, 22, 23.)
to the motion, the parties' agreement represents a
compromise and settlement of disputed positions, and fully
satisfies all of Dominguez's fees, costs, and expenses
under 28 U.S.C. § 2412. (Mot. at 1355.) The motion
acknowledges that the award of fees and costs is subject to
offset by any outstanding federal debt owed by Dominguez
pursuant to Astrue v. Ratliff, 560 U.S. 586, 130
S.Ct. 2521, 117 L.Ed.2d 91 (2010). (Id.) The parties
further agree that, to the extent the award is not subject to
offset by pre-existing debts to the United States, the
Commissioner will direct that the award be made payable to
Dominguez's counsel pursuant to the attorney fee
assignment between plaintiff and her counsel. (Id.
EAJA requires the government to pay a prevailing social
security plaintiff's reasonable attorney fees and costs
“unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C.
2412(d)(1)(A); see Howard v. Barnhart, 376 F.3d 551,
553-54 (6th Cir. 2004). The Commissioner does not contend
that the government's position was substantially
justified,  and there is no dispute that plaintiff is
the “prevailing party” under the
the parties have stipulated to the amount of an award, the
Court must still examine it for reasonableness. 28 U.S.C.
§ 2412(d)(2)(A) (“fees and other expenses”
includes, inter alia, “reasonable attorney
fees”). Documentation submitted by the parties in
support of the motion shows 29.9 hours of legal services were
performed by counsel between November 3, 2016 and February 1,
2018, including the typical legal services of preparing the
complaint, reviewing the administrative record, communication
and correspondence, research and briefing, reviewing court
orders, and the like. (Doc. No. 24-1.) The Court finds that
both the nature of the legal services and the number of hours
expended to be reasonable in this case.
the number of hours expended into the stipulated fee award
results in an hourly rate of $188.23. The EAJA provides that
the amount of an attorney fee award shall be based on
prevailing market rates, but shall not exceed $125.00 per
hour unless the Court determines that the cost of living or
special factors justifies a higher fee. 28 U.S.C. §
not required, the statutory hourly rate is commonly adjusted
to account for cost of living increases since 1996-the year
when rate of $125.00 was established. See Gisbrecht v.
Barnhart, 535 U.S. 789, 796 n. 4, 122 S.Ct. 1817, 152
L.Ed.2d 996 (2002) (“A higher fee may be awarded if
‘the court determines that an increase in the cost of
living . . . justifies a higher fee.'”) (quoting 28
U.S.C. § 2412(d)(2)(A)(ii)); see also Hutchinson v.
Colvin, No. 1:15-cv-1144, 2016 WL 6777804, at *2 (N.D.
Ohio Nov. 16, 2016) (examining the appropriateness of a cost
of living increase).
appropriate measure of inflation in this geographic area is
the “Midwest Urban” CPI.Crenshaw v. Commissioner
of Social Security, No. 1:13CV1845, 2014 WL 4388154 at
*3 (N.D. Ohio Sept. 5, 2014) (collecting cases). The Court
finds that an hourly rate of $188.23, considering adjustments
for cost of living increases since the enactment of the EAJA,
is both supportable and reasonable. See 28 U.S.C.
§ 2412(d)(2)(A); see also Perkins v. Colvin,
No. 1:14CV2213, 2016 WL 2927989, at *2 (N.D. Ohio Apr. 22,
2016), report and recommendation adopted, No. 1:14
CV 2213, 2016 WL 2829864 (N.D. Ohio May 13, 2016) (EAJA fees
ranging from $175.00 to $184.25 found to be reasonable)
the Court is not aware of any special circumstances that
would make an attorney fee award in this case unjust.
Accordingly, the Court awards to Dominguez attorney fees and
costs in the amount of $5, 628.07.
parties acknowledge, EAJA attorney fees are subject to offset
to satisfy any preexisting federal debt owed by Dominguez.
Within 30 days from the date of this Order, counsel shall
verify whether Dominguez owes a pre-existing debt to the
government, and any such debt will be offset against the EAJA
award granted herein. The Commissioner will direct that any
award be made payable to the plaintiffs attorney pursuant to
the attorney fee assignment between them (see Doc.
No. 24-2), and will direct the Treasury Department to mail
any check to the business address of plaintiff s counsel.