Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Taylor v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, Pikeville

July 12, 2019

SHERRY DENISE TAYLOR, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD SENIOR U.S. DISTRICT JUDGE.

         Plaintiff Sherry Denise Taylor, one of many past clients of former attorney Eric C. Conn, was the prevailing party in this action pertaining to reconsideration of Social Security benefits. [See DE 17]. Subsequently, Taylor moved for an award of attorney's fees under the Equal Access to Justice Act (“EAJA”). [DE 18]. In response, the Commissioner does not oppose Taylor's motion for attorney's fees, but the Commissioner opposes Taylor's request for an increase in the statutory maximum rate and argues that some of the requested hours are not compensable because they were incurred post remand. [DE 19].

         After reviewing the motion for fees and the Commissioner's arguments in opposition, Taylor's motion for attorney's fees under the EAJA [DE 18] is GRANTED IN PART and DENIED IN PART. The statutory maximum rate of $125 per hour for attorney's fees is appropriate in this action. Even so, Taylor is entitled to recover 9.1 hours of attorney's fees because the requested fees were recovered in a civil action. As a result, Taylor is entitled to $1, 137.50 in attorney's fees as the prevailing party in this action.

         I. Procedural History

         Plaintiff Sherry Taylor is one of many individuals affected by the investigation into fraud involving former attorney Eric C. Conn. In May 2015, the Social Security Administration notified Taylor that there was reason to believe fraud was involved in Taylor's initial application for Social Security benefits. Subsequently, Taylor's benefits were terminated.

         Then, Taylor initiated this action in federal court seeking review of the Commissioner's decision. [DE 1]. The Commissioner moved for entry of judgment and remand for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). [DE 14]. Taylor did not oppose the motion to remand. [DE 15]. As such, the Court granted judgment in favor of Taylor and ordered that this action be reversed and remanded for further proceedings. [DE 16; DE 17].

         Now, Taylor moves for an award of attorney's fees under the EAJA. [DE 18]. The Commissioner has responded [DE 19] and Taylor has replied [DE 20], making this matter ripe for review.

         II. Analysis

         In this action, the Commissioner agrees that Taylor is entitled to an award of attorney's fees under the EAJA. But the Commissioner opposes the requested amount of EAJA fees for two reasons. First, the Commissioner opposes Taylor's requested $203 hourly rate because it is above the statutory maximum rate. Second, the Commissioner contends that some of the fees Taylor requests are not compensable under the EAJA because they were incurred after remand. These arguments are considered below.

         A. Increase in Statutory Rate

         The EAJA allows prevailing parties in certain civil actions brought against the United States to recover fees and other expenses. See 28 U.S.C. § 2412(d)(1)(A). The Act defines “fees and other expenses” and explains 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).

         The EAJA constitutes a waiver of sovereign immunity and should be strictly construed. See Ardestani v. INS, 502 U.S. 129, 137-38 (1991); Turner v. Astrue, 790 F.Supp.2d 584, 585 (E.D. Ky. 2011). Still, while the “statutory rate is a ceiling and not a floor, ” Chipman v. Sec'y of Health & Human Servs., 781 F.2d 545, 547 (6th Cir. 1986), the Act allows for upward adjustments from the statutory rate. Begley v. Sec'y of Health & Human Servs., 966 F.2d 196, 200 (6th Cir. 1992).

         When considering a request for an increase in the statutory hourly fee, courts must “carefully consider, rather than rubber stamp, requests for adjusted fee awards based on inflation.” Id. Such increases are largely within the discretion of the district court and the Sixth Circuit has “neither precluded cost of living adjustments in appropriate cases, nor interfered with the authority of the district courts to decide such matters within their discretion.” Id.

         The plaintiff bears the burden of producing evidence to support an increase in the statutory rate. Bryant v. Comm'r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 2009). To justify an increase, “[p]laintiffs must ‘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, experience, and reputation.'” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).

         Here, Taylor's attorney, Evan Barret Smith, [2] has submitted various affidavits and advances multiple arguments in support of the motion for an increase in the statutory rate for attorney's fees.

         For instance, Smith has submitted an affidavit reflecting his education, experience, and reputation [DE 18-2]. Smith's affidavit demonstrates that he has a distinguished educational and professional background. Currently, Smith works as a staff attorney at Appalachian Citizens' Law Center where his practice focuses primarily on federal black lung benefits.

         Smith also submitted affidavits from several attorneys stating that the market rate for legal services of this kind are well above the statutory rate of $125 per hour. All four attorneys who submitted affidavits opined that the market rate for Social Security cases in the Eastern District of Kentucky is higher than the statutory rate of $125 per hour.

         Furthermore, Smith has submitted economic and market data in support of the motion. First, Smith used the United States Bureau of Labor's Consumer Price index to determine that $125 in 1996 was equivalent to $203.02 in October 2018 dollars. [DE 18 at 5, Pg ID 101]. Second, Smith stated that, based on market rates, the median ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.