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Gibson v. Colvin

United States District Court, Sixth Circuit

November 26, 2013

MARK KENNDRICK GIBSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

DANNY J.C. REEVES, District Judge.

On July 15, 2013, the Court remanded this action to the Commissioner of Social Security for further administrative proceedings. [Record No. 28] Approximately three months later, Gibson's attorney, Shoshana Pehowic, filed an application for attorneys' fees under the Equal Access to Justice Act ("EAJA") as the "prevailing party." [Record No. 30] The first motion for fees was denied, without prejudice. Thereafter, Pehowic filed an amended motion for attorney fees. [Record No. 32] For the reasons discussed below, the Court will grant the motion for fees, in part.

I.

Gibson has requested $2, 125.00 for twelve and one-half hours of legal work at an hourly rate of $170.00, together with $445.00 in costs. Id. The Commissioner argues that hourly rate is excessive. [Record No. 33, p. 2] However, she does not object to the request for an award of costs.

A. Hourly Rate

The EAJA requires payment of fees and expenses to the prevailing party in an action against the United States, unless the government's position was substantially justified. The EAJA provides, in relevant part, that

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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). In establishing what constitutes a reasonable attorney's fee, the EAJA provides:

The amount of fees awarded under 28 U.S.C. § 2412(d) 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, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A). Absent cost of living increases or any "special factors, " the statutory cap on attorneys' fees is $125.00 per hour. See, e.g., Caremore, Inc. v. NLRB, 150 F.3d 628, 631 (6th Cir. 1998).

In determining the appropriate hourly rate to be used in calculating attorneys' fees under the EAJA, the Court initially determines the prevailing market rate for the kind and quality of services furnished. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The prevailing market rate is the rate "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). Courts examine standard fees in the relevant community in addressing market rates. Id. at 895. And while a plaintiff can request an increase in the statutory rate, the burden is on that party to produce evidence to support an increase. Bryant v. Comm'r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009) (citing Blum, 465 U.S. at 898).

In this case, Pehowic has requested an award for twelve and one-half hours at rate of $170.00 per hour. To show that this the prevailing market rate, Pehowic has attached information regarding the rates of attorneys in the Cincinnati, Ohio area. She argues that the United States Census Bureau and the United States Office of Management and Budget ("OMB") consider Covington, Kentucky to fall within the Cincinnati Statistical Metropolitan Area. As a result, Pehowic claims that Cincinnati should be considered part of the relevant community in determining the prevailing market rate. [Record No. 32, p. 6] However, the relevant legal community for fee purposes is the Eastern District of Kentucky.[1] Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000) ("[T]he court should deem the relevant community' for fee purposes to constitute the legal community within that court's territorial jurisdiction; thus the prevailing market rate' is that rate which lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record[.]"). Several courts have held that information concerning the market rates in Ohio does not establish the prevailing market rate in the Northern Division of the Eastern District of Kentucky. See Brauntz v. Astrue, No. 11-102 JBC, 2013 WL 28065, at *1 (E.D. Ky. Jan. 2, 2013); Tapp v. Astrue, No. 10-270-GWU, 2011 WL 6934521, at *2 (E.D. Ky. Dec. 30, 2011); Burkett v. Astrue, No. 09-53-GWU, 2010 WL 881905, at *2 (E.D. Ky. Mar 8, 2010). In short, the undersigned concludes that the information provided regarding the prevailing market rate in Cincinnati or Ohio is not relevant to this determination.

Pehowic also submits the affidavits of three attorneys in support of her argument that she is entitled to $170.00 per hour. [Record Nos. 32-9, 32-10, 32-11] The "burden is on the fee applicant to produce satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, expertise, and reputation." Blum, 465 U.S. at 895 n. 11. However, Pehowic admits that she does not have comparable experience to these attorneys. [Record No. 34, p. 2] Nonetheless, she argues that because she has a similar success rate, and because her requested rate is below these attorneys' typical hourly rate, the court should grant her request.

However, Pehowic has not demonstrated that her requested hourly rate is in line with similar services in the area. As noted, the rates reflected in the attorney affidavits are not comparable to Pehowic in experience. Without more, this information is not relevant in determining the hourly rate in this case. Notably, Pehowic has presented no evidence regarding the prevailing market rate for the Northern Division of Eastern District of Kentucky ...


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