United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
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].
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.
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
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].
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
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
Increase in Statutory Rate
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).
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).
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.
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)).
Taylor's attorney, Evan Barret Smith,  has submitted
various affidavits and advances multiple arguments in support
of the motion for an increase in the statutory rate 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
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.
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 ...