United States District Court, N.D. Ohio, Eastern Division
GARY L. SETSER, PLAINTIFF,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
AMENDED MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE
the Court is the parties' amended stipulation for an
award of attorney fees under the Equal Justice Act, 28 U.S.C.
§ 2412 (“EAJA”) (Doc. No. 18 [“Am.
Mot.”]). For the reasons and in the manner set forth
herein, the award of attorney fees is approved.
August 30, 2018, plaintiff Gary Setser (“Setser”)
filed this action seeking judicial review of the final
decision of defendant Nancy A. Berryhill, Acting Commissioner
of Social Security (“Commissioner”), denying his
application for a period of disability and supplemental
security income. (Doc. No. 1 (Complaint).) On February 14,
2019, the parties filed a joint stipulation to remand this
matter to the Commissioner for further proceedings. (Doc. No.
15.) On February 22, 2019, the Court entered an order, upon
the parties' stipulation, remanding this action to the
Commission, pursuant to 42 U.S.C. § 405(g), for further
administrative proceedings. (Doc. No. 16.)
March 6, 2019, the parties filed a joint proposed stipulation
for attorney fees. (Doc. No. 17.) The Court directed the
parties to file documentation to support their motion, which
the parties filed, as part of the present amended stipulation
on March 11, 2019. By their amended stipulation, the parties
seek an EAJA award in the amount of $4, 200.00, which the
parties indicate represents a compromise of disputed
positions and will fully satisfy any and all of Setser's
claims for fees, costs, and expenses under the EAJA. (Am.
Stip. at 939.)
EAJA requires the government to pay a prevailing
plaintiff's 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, 554 (6th Cir. 2004).
There is no dispute here that the government's position
was not substantially justified and that Setser is the
“prevailing party” under the EAJA. See
Hammock v. Comm'r of Soc. Sec., No. 1:12-CV-250,
2015 WL 7292750, at *1 (S.D. Ohio Oct. 26, 2015), report
and recommendation adopted sub nom, 2015 WL 7276087
(S.D. Ohio Nov. 18, 2015) (“A plaintiff who wins a
remand of [his] social security appeal in this Court is a
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”). The EAJA provides that the amount of an
attorney fee award shall be based upon prevailing market
rates, but shall not exceed $125 per hour, unless the Court
determines that the cost of living or special factors
justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A)(ii).
submitted in support of the amended stipulation shows 23.75
hours of legal services performed between July 25, 2018 and
February 14, 2019 (including the typical legal services of
reviewing the administrative record, telephone calls,
reviewing court orders, drafting pleadings and briefs, and
the like). (Doc. No. 18-1 (Billing Sheet).) The Court finds
reasonable both the amount and the nature of the legal
counsel's affidavit also reflects an hourly billing rate
of $350.00 for services. (Doc. No. 18-2 (Affidavit of
Attorney Debra S. Shifrin) ¶ 4.) The affidavit further
provides, however, that counsel agreed to reduce her billing
rate to $185.00 for purposes of this amended stipulation.
(Id. ¶ 7.) This reduced rate is still an upward
departure from the $125.00 statutory cap. It is common,
although not required, to adjust the statutory hourly rate to
account for cost of living increases since 1996, the time
when that rate was last capped. 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).
rates proposed by counsel comport with the measure of
inflation in this geographic region (i.e., the “Midwest
Urban” Consumer Price Index (“CPI”)).
Crenshaw v. Comm'r of Soc. Sec., No. 1:13CV1845,
2014 WL 4388154, at *3 (N.D. Ohio Sept. 5, 2014) (collecting
light of these facts, the Court finds that the stipulated
award of $4, 200 is both reasonable and adequately reflective
of “the prevailing market rates for the kind and
quality of services furnished[.]” 28 U.S.C. §
2412(d)(2)(A). This award will be in full satisfaction of any
and all of Setser's claims for fees, costs, and expenses,
and is subject to setoff to satisfy any preexisting debt owed
by Setser to the United States. See Astrue v.
Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 177 L.Ed.2d 91
Commissioner is directed to determine whether Setser owes any
pre-existing debt to the United States, and if he does not,
the Commissioner is directed that the award of $ 4, 200 be
made payable to plaintiffs attorney.