McHARGH, Magistrate Judge.
Plaintiff hereby applies for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(a), (d). The EAJA allows fees and other expenses to a party prevailing against the government in litigation, if that party files a timely application and meets a net-worth requirement. The agency can avoid an award if it shows that the position of the United States was substantially justified or that special circumstances make an award unjust.
Congress passed the EAJA in response to its concern that persons "may be deterred from seeking review of . . . unreasonable governmental action because of the expense involved in securing the vindication of their rights." Sullivan v. Hudson, 490 U.S. 877, 883 (1989). The Supreme Court of the United States has termed the EAJA a "lifeline" which Congress intended to throw to prevailing Social Security claimants. Id., 490 U.S. at 890.
The Supreme Court has also clarified that the purposes of the EAJA should be vigorously advanced by the courts, despite any cost to the government. "The Government's general interest in protecting the federal fisc is subordinate to the specific statutory goals of encouraging private parties to vindicate their rights and `curbing excessive regulation and the unreasonable exercise of Government authority.'" Commissioner, I.N.S. v. Jean, 496 U.S. 154, text at nn. 13, 14 (1990) (footnotes omitted). The best way for the agency to reduce its liability for EAJA fees is to screen its cases carefully at the Appeals Council so that indefensible administrative decisions do not extend the caseloads of the federal courts and burden claimants.
This Court entered a consent Order of remand on May 31, 2012, remanding the claim for disability benefits back to the agency for further proceedings. The remand is under 42 U.S.C. ' 405(g), sentence four. Plaintiff is now a prevailing party by virtue of the Court's reversal and remand. Shalala v. Schaefer, 509 U.S. 292, 301 (1993) ("a sentence-four remand . . . terminates the litigation with victory for the plaintiff").
This application is timely. "In sentence four cases, the filing period begins after the final judgment ("affirming, modifying or reversing") is entered by the court and the appeal period has run, so that the judgment is no longer appealable." Id., 509 U.S. at 298, quoting Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991). The record in this case shows that plaintiff's financial net worth is well within the maximum allowable for jurisdiction under the EAJA.
The position of the United States was not substantially justified. The burden of showing substantial justification rests upon the agency, Scarborough v. Principi, 541 U.S. 401 (2004). For the agency's position to be substantially justified, both the underlying denial of disability and the agency's position in court must have been reasonable. 28 U.S.C. § 2412(d)(2)(D).
After plaintiff briefed five errors, the agency moved to remand and conceded that the ALJ erred. D. 14 at 2. The agency's request for a remand effectively admitted that its decision was not defensible.
Fees of $5,890.68 have been incurred in this civil action to date. Fees incurred applying for EAJA fees are themselves compensable under the EAJA, Jean, 496 U.S. at 154. A rate of $184.75 per hour is requested for services by Attorneys Roose and Schnaufer, which rate is less than the prevailing market rates because of a statutory "cap" on attorney fee hourly rates. The Court has discretion to determine that the 48 percent increase in the cost of living since 1996 justifies an equivalent increase in the hourly-rate cap on EAJA fees ($125 in 1996 dollars), and plaintiff requests the Court to make that determination and increase. See detailed argument and evidence infra.
A rate of $40.00 per hour is requested for Appellate Assistant Shriver.
The services of Attorneys Roose and Schnaufer are itemized in Exhibit A, attached hereto. Most of the services by Attorney Roose were researching and preparing legal support for this application and its attachments, due to new points raised by the agency in its opposition to recent EAJA applications. See, e.g., Jaworski v. Commissioner, Civ. No. 1:10-cv-02936 (Order granting EAJA in part and denying in part, and entertaining a motion for reconsideration if the claimant submits additional evidence of prevailing rates, D. 25, June 8, 2012) (U.S.M.J. White) (also claimant's motion for Reconsideration with additional evidence, D. 26, June 22, 2012) (also agency's Reply insisting on proof of prevailing rates in social security disability cases, D. 27, June 29, 2012); Rodriguez v. Commissioner, Civ. No. 3:11-cv-398 (N.D. Ohio, June 28, 2012) (order to supplement EAJA application with additional evidence in conformance with Blanton v. Commissioner, Civ. No. 1:10-cv-2463 (N.D. Ohio, June 27, 2012, R&R increasing EAJA cap)) ( U.S.M.J. Vecchiarelli).
The services of Appellate Assistant Shriver are itemized in Exhibit B, also attached. Plaintiff requests expenses as itemized in Exhibit C, attached hereto. Expenses are requested under 28 U.S.C. § 2412(d), which allows an award for a broader category of expenses than are traditionally taxed as court costs under 28 U.S.C. § 1920. Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), aff'd sub nom. Commissioner, I.N.S. v. Jean, 496 U.S. 154.
An exhibit explaining the effect of inflation on the hourly rate limit is attached hereto as Exhibit D. The résumés of Attorneys Roose and Schnaufer and Appellate Assistant Shriver are attached hereto as Exhibit E. A summary of requests is attached as Exhibit F. The named Plaintiff has assigned the right to be paid the EAJA fee to the attorney, and a copy of the fee agreement containing the assignment is attached as Exhibit G.
The EAJA provides for "reasonable attorney fees." The amount "shall be based upon prevailing market rates for the kind and quality of the services furnished." However, the prevailing-rate fees are limited by an hourly-rate cap: "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." EAJA, 28 U.S.C. 2412(d)(2)(A) (rate increased from $75 to $125 in 1996). Thus there is a two-step test: the first is "prevailing market rates," which then are limited by an adjustable hourly-rate cap.
In the past, when this Court has awarded attorney fees under the EAJA it has usually awarded them at the hourly rate of $125 plus inflation increase, if the attorney asked for the inflation increase and proved an increase in the cost of living since 1996.
Recently this year, the agency has begun objecting to the inflation increase in the hourly-rate cap. The agency cites a Sixth Circuit case, Bryant v. Commissioner of Social Security, 578 F.3d 443, 450 (2009), and a Seventh Circuit case, Mathews-Sheets v. Astrue, 653 F.3d 560 (2011), for the propositions that a district court may not grant the inflation increase in the cap unless the claimant proves more than just an increase in the cost of living, and that a district court may not grant the inflation increase in the cap unless the claimant proves that there are no competent attorneys who would have handled the case for $125 per hour. The agency notes that occasionally an attorney in this district asks only for the unincreased $125 rate. These objections lack merit.
The agency and some courts have interpreted Bryant too broadly. The Sixth Circuit in Bryant affirmed the decision of a district court in Kentucky to limit EAJA fees to $125 per hour, where the claimant had submitted only the Consumer Price Index to show an increase in the cost of living. Bryant affirmed on an abuse-of-discretion standard. The claimant believes that the district court has discretion to grant or deny a cost-of-living increase in the EAJA cap when an applicant submits only the Consumer Price Index. (Claimant maintains that he has submitted much more than the CPI in this case, but continues with the legal point.)
Although Bryant said that submitting only the Consumer Price Index "is not enough," and that the claimants had "failed to meet their burden of proof," that means, in the context of the abuse-of-discretion standard of appellate review, that submitting only the CPI was not enough to compel an increase. A correct reading of Bryant in light of Pierce v. Underwood, 487 U.S. 552, 562 (1988) (explaining abuse-of-discretion review in EAJA cases), is that the district court has discretion to grant or deny the inflation increase where plaintiff offers only the CPI as proof.
Pierce v. Underwood explained that decisions by judges are, for purposes of standard of review, traditionally divided into three categories: questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion"), 487 U.S. at 558. The abuse-of-discretion standard is "deferential" 487 U.S. at 558, and allows the district court to develop rules based on experience and local conditions, giving flexibility to the district courts instead of relying on the rule-making of the appellate court that would occur if the appellate court reviewed de novo. 487 U.S. at 561-62.
Bryant stated four times that it applied an abuse-of-discretion standard. 578 F.3d at 445 ("whether the Plaintiffs were entitled to an increase in the hourly attorney-fee rate [] is reviewed for abuse of discretion," 449 ("did not abuse its discretion in limiting fees to the EAJA's statutory cap"), 450 ("The Commissioner responds that based on the evidence submitted in each case, the district court did not abuse its discretion in denying an increase in the EAJA hourly-fee rate"; [submitting the CPI] "is not enough, and the district court did not abuse its discretion in denying Plaintiffs' requests"). Prior Sixth Circuit caselaw had established that inflation increases in the EAJA rate cap were within the district court's discretion. Chipman v. Secretary of HHS, 781 F.2d 545, 547 (6th Cir. 1986).
Bryant could have held three things, on an abuse-of-discretion standard, where only the CPI was submitted:
(1) It was an abuse of discretion not to increase the cap;
(2) It was within the discretion of the court whether to increase the cap; or
(3) It would be an abuse of discretion to increase the cap.
The plaintiff in Bryant argued (1). The Bryant case presented a choice between (1) and (2). The court in Bryant ruled (2). The agency now argues that the court in Bryant ruled (3), and some district courts have agreed because of the misleading language in Bryant ("Plaintiffs failed to meet their burden of proof"; the CPI "is not enough"). If the Sixth Circuit in Bryant had intended to rule (3), it would have said "not only was the district court within its discretion to deny the cap increase, but as a matter of law the district court could not have granted the increase without more than the CPI." Bryant instead affirmed on the abuse-of-discretion standard.
The quantity and type of proof necessary to justify an increase in the cap was a matter especially within the discretion of the district court, since the district court has more experience than the circuit court about local attorney hourly rates and how inflation has affected them, and has ruled many times on the question before. Further, the language of the EAJA makes it unlikely that Bryant intended to add a submission requirement for EAJA applications, as the EAJA already lists the required filings: the applicant "shall . . . submit . . . the amount sought, including an itemized statement from any attorney . . . stating the actual time expended and the rate at which fees and other expenses were computed," 28 U.S.C. § 2412 (d)(1)(B). Within that required framework, the district courts have discretion regarding quantity and type of proof. The Sixth Circuit's imprecise language notwithstanding, Bryant did not intend to take that question away from the district court.
Two other facts about Bryant also shows that it was intended as an abuse-of-discretion affirmance that would not establish a new rule. First, the agency did not interpret the case as a new rule, so it agreed to fees above $125 many times, without proof beyond the CPI, after Bryant was issued. Blanton v. Commissioner, Civ. No. 1:10-cv-2463 (N.D. Ohio, June 27, 2012, R&R of U.S.M.J. Vecciarelli at 16-17, citing cases). Second, the reasoning of Bryant is not persuasive. The case cited Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) (Plaintiffs 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"), Bryant 578 F.3d at 450. This Blum footnote applies to fees under a different statute that does not have an hourly-rate cap like the EAJA does, and only is relevant to the first EAJA step, prevailing market rates. Bryant instead involved only the second EAJA step, whether the hourly-rate cap should be increased due to inflation. Bryant was not clear about why the proof requirements for proving prevailing market rates for fees under 42 U.S.C. § 1988 in civil rights cases would apply to the EAJA's special rate-cap-exception step, performed after prevailing market rates are determined to be higher than the cap: "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." EAJA, 28 U.S.C. 2412(d)(2)(A)
If the statements in Bryant that the CPI is not enough and does not meet the burden of proof are not misleading, then they are dicta, not necessary to the panel's affirmance. District courts must follow the holdings of the higher courts, not their dicta. United States National Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439 (1993) ("a valuable reminder about the need to distinguish an opinion's holding from its dicta").
The agency's position here would have unintended adverse consequences. If an EAJA claimant must, as a matter of law, provide more information than the CPI, then EAJA applications will become more time-consuming and expensive. That expense will be borne by the government, since services litigating EAJA fees are themselves compensable under the EAJA, Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990).
Plaintiff herein supplies several types of additional evidence that suffices for the Court to allow the inflation increase, even if Bryant means what the agency says it does.
The services furnished here were in federal statutory litigation based upon an administrative record and an extensive body of Social Security law: statute, regulations, rulings, and other rules. The quality of the services that were furnished is believed to have been high. Attorney Roose received his law degree cum laude from the University of Pennsylvania Law School in 1971, has been a member of the bar since 1972, and is an equity partner in a two-partner law firm. Attorney Schnaufer received his law degree from the University of Michigan Law School in 1989, and has been a member of the bar since 1990. He is an individual practitioner concentrating his practice in Social Security litigation in many districts and circuits.
Both attorneys have decades of outstanding experience in federal litigation of Social Security cases at the court level. Because of the experience and skill of the attorneys, the number of hours billed in the merits phase of this litigation (21.6 plus 1.8 on the Application) was modest. Grooms v. Comm'r of Soc. Sec., No. 2:08-14189, 2011 WL 4536886 at *2 (E.D. Mich. Sept. 30, 2011) (noting that the agency cited Hayes v. Secretary of HHS, 923 F.2d 418, 420 (6
The agency has in another case insisted that the claimant must specifically prove the prevailing hourly rates of Social Security disability attorneys. Jaworski, supra, Civ. No. 1:10-cv-2936 (N.D.Ohio June 29, 2012, Defendant's Reply to Plaintiff's Motion, D. 27 at 3). This is unrealistic and unnecessary. However, with an abundance of caution, the claimant will analyze and prove that issue.
The Court should understand that attorneys who handle Social Security litigation representing claimants do not, and cannot legally, charge by the hour. To counsel's knowledge, no bar association could compile such actual billing rates for Social Security litigation.
All rates for services in Social Security litigation are contingent rates. It is a federal crime to charge a fee if the civil action does not result in past-due benefits, and the Court must still approve the fee up to 25 percent of benefits won, 42 U.S.C. § 406(b)(1)(A), (2). The district courts set "reasonable" fees up to 25% in Social Security cases based upon the standard contingent-fee agreement for 25% of past-due benefits, Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). As a result, the "prevailing rates" in Social Security litigation are those set by the court where no statutory cap applies to limit the fee. Thus the rates approved by the court on § 406(b) motions, if the 25% cap is not the limiting factor, are the most accurate indicators of the "prevailing rates" for that specific type and quality of work.
The rates that this Court has routinely set as "reasonable" fees under 42 U.S.C. § 406(b) for the undersigned in Social Security cases are much higher than the capped hourly rate requested under EAJA here. See, e.g., Honaker v. Commissioner, Civ. No. 1:05-cv-2080 (N.D. Ohio, Oct. 23, 2008) (Order of Economus, D.J., on § 406(b) motion, D. 33 at 5, approving $400 per hour for the undersigned); Thomas v. Commissioner, Civ. No. 5:08-cv-1763 (N.D. Ohio, April 21, 2011) (Order of Lioi, D.J., on § 406(b) motion, D. 22 at 3, approving $7,418.50 for 12.1 hours of work for counsel); Beougher v. Commissioner, Civ. No. 3:08-CV 2866, 2012 WL 641538 (N.D. Ohio, Feb. 28, 2012) (approving $552.44 per hour for another attorney). The agency is aware of these rates set by this Court, as it is a party to all of the litigation in which those fees are set.
Another proof of the prevailing rates for Social Security litigation is past EAJA awards that have allowed full increase of the EAJA hourly-rate cap, since the court in each such case made an implicit finding that prevailing rates were at least as high as the hourly rate awarded. See, e.g., Woods v. Commissioner, 1:10-CV-1714 (N.D. Ohio, Feb. 17, 2012) (Memorandum Opinion and Order awarding $179.51 per hour for the first half of 2011) (U.S.M.J. Vecchiarelli).
A third way to evaluate prevailing rates for Social Security litigation would be to compile EAJA awards in cases where the court found the agency guilty of "bad faith" and awarded full market rate fees under 28 U.S.C. § 2412 (b). However, these reported awards are so rare that they do not establish a pattern, and seldom specify the rate granted. See, e.g., Brown v. Sullivan, 916 F.2d 492 (9th Cir. 1990); Baker v. Bowen, 839 F.2d 1075 (5th Cir. 1988).
It would be equally difficult to evaluate a prevailing rate for non-court services in Social Security claims, since those fees are also regulated and seldom depend on the time spent. Such fees can be as large as a $6,000.00 fee for a few hours of time. The services developing evidence and representing claimants at administrative hearings are not the same "kind" of services stated in the EAJA.
A key element discussed in the Blum case cited by Bryant, supra, is the experience of the attorney. In Blum, the attorneys were awarded hourly fees of about $100 in 1984 (the CPI has more than doubled since 1984), despite having less than two years' experience practicing law, and their experience was in Social Security law. Blum v. Stenson, 465 U.S. at n. 15. Here, counsel are much more experienced and the quality of services is believed to have been commensurate.
Exhibit G is selected pages from "The Survey of Law Office Economics, 2011 Edition," National Law Journal and ALM Legal Intelligence, available for purchase through almlegalintelligence.com, telephone (888)770-5647. This report was previously published by Altman Weil, and surveys firms in a variety of areas of practice. Upon request, counsel will file the entire Survey (364 pages plus appendix).
Every rate shown in the survey, whether reported by region, state, size of firm, partner status, year admitted to the bar, or years in practice, is substantially higher than the $184.75 rate plaintiff requested in the Application. Although the survey did not include sole practitioners, the applicable rate for Attorney Schnaufer should be comparable to that of an associate, at least. Page 127 shows that the median standard hourly rate for a partner/shareholder in the East North Central Region (includes Ohio, see page 13) is $325, and for an associate is about $225 (the internal page numbering is used here). Page 128 shows that the median standard hourly rate for a partner/shareholder in a firm of 2-8 lawyers is $300, and for an associate is about $200. Page 130 shows that the median standard hourly rate for a lawyer admitted to the bar in 1971-1975 is about $375, and for a lawyer admitted in 1986-1990 is about $330. Page 137 shows that median standard hourly billing rate for lawyers in the East North Central region with 31 or more years of experience is $353, and with 21 to 30 years, $325. Page 149 shows that the median standard hourly billing rate for Ohio lawyers with 31 or more years of experience is $370, and with 21 to 30 years, $330. Page 162 shows that the median standard hourly billing rate for lawyers practicing Administrative law with 31 or more years of experience is $380, and with 21 to 30 years, $425.
This survey supports counsel's certification that his usual hourly rate is $300, and supports an hourly rate for both attorneys that substantially exceeds the figure of $184.75 that was requested. The survey is also consistent with the effective hourly rates that courts have been granting to attorneys as reasonable fees paid out of the claimant's past-due benefits, 42 U.S.C. § 406(b).
In summary, the prevailing market rates for the kind and quality of service provided in this case are significantly higher than the $184.75 requested in this Application. Proofs include this Court's experience with the record and briefing in this case, counsel's statement of experience, counsel's statement of $300-per-hour usual rate, section 406(b) awards to the undersigned where the 25% limit did not reduce the award, prior EAJA awards to counsel and other attorneys above $170 per hour, and the various hourly billing rates for attorneys of similar experience, region, and indicators of skill in Exhibit G.
Once the prevailing market rates are known to be higher than the claimant is requesting, there still remains to be considered the hourly-rate cap. "[A]ttorney 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) (increase in hourly rate from $75 to $125, effective March 1996, section 223, Pub. L. 104-121). The agency in other recent cases has challenged the increase in the cap, although its reasoning is not clear about whether the prevailing rates or the cap is the real issue.
Since it is widely understood that the cost of living has increased significantly since 1996, many courts have routinely increased the fee cap by the amount of the increase in the cost of living, unless an unusual factor appears. The most generally-accepted national CPI index, the CPI-U, all items, U.S. city average, has shown a 48 percent increase from March 1996 to April 2012, when most services were performed. See Exhibit C.
The Bryant case does not state the type of proof that should be adduced to justify an inflation increase in the fee-rate cap. Bryant quotes Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984), for the proposition that plaintiffs 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." This appears to be the proof used in proving prevailing market rates, which counsel has done, above. Proof of market rates again at the second step may be relevant because where, as here, the market rates are far above the $125 cap even as adjusted for inflation, that gap is strong justification for increasing the cap.
Prevailing rates for attorney services have increased markedly since 1996. The Survey of Law Firm Economics, Exhibit G, shows that average hourly billing rates for 25
Another case often cited by the agency and some district courts, Mathews-Sheets v. Astrue, 653 F.3d 560 (7th Cir. 2011), held that the district court erred by barring consideration of increasing the EAJA cap for inflation. It stated in dicta that the inflation adjustment is to be justified by reference to the particular circumstances of the lawyer seeking the increase. 683 F. 3d at 563-64 ("Suppose inflation had not affected the wages [the attorney] pays his clerical employees, or had been offset by advances in law-office technology or changes in the standards and procedures of the Social Security Administration that made it cheaper to litigate claims for disability benefits"). It should be noted that these dicta would read "increase in the cost of living" to mean "increase in the cost of providing the services," which is quite different. The dicta are inconsistent with Blum v. Stenson, 465 U.S. at 894 (fees are not set based on the cost of providing the services). However, since the agency has cited this language in other cases, and some district courts have repeated it, the claimant will also provide evidentiary support in line with those dicta.
Mathews-Sheets can also be read to say in dicta that the claimant arguing for a cost-of-living increase must show limited availability of qualified lawyers to handle such a case at $125 per hour. However, this reading would clearly violate the EAJA statute because it would conflate the CPI exception with the limited-availability exception ("[A]ttorney 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.")
Mathews-Sheets contains a contradiction in dicta on this point. First it states: "It might seem that . . . the lawyer arguing for a cost of living increase must show limited availability of lawyers able to handle such a case. But that is not correct." (This statement is true, because the cost-of-living exception to the $125 cap and the limited-availability exception are alternatives, separated by "or.") Then it confusingly states: "the plaintiff's lawyer will have to show that without a cost of living increase that would bring the fee up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of social security disability benefits could not be found in the relevant geographical area to handle such a case." 683 F. 3d at 565. (This statement can be read to violate the EAJA's language by requiring both alternatives.)
The inconsistency is resolved by clarifying the second passage in Mathews-Sheets to mean that if the lawyer on remand were unable to raise the fee cap through the first method (cost-of-living increase), then the lawyer would have to show that the second method applies (limited availability of attorneys). Claimant is not seeking an increase of the $125 hourly cap based on limited availability of qualified attorneys, and will not adduce evidence on that issue unless the Court requests. Cases where an occasional attorney has limited an EAJA request to $125 per hour are not relevant, either as establishing the "prevailing market rates" or as disproving limited availability. Those attorneys may have other reasons for limiting the requests, and probing those reasons would introduce an unnecessary side issue.
Exhibit G, "The Survey of Law Office Economics," provides the evidence that the Bryant case mentions. It also provides evidence relevant to whether the increase in cost of living "justifies" an increase in the fee cap under the dicta of the Mathews-Sheets case (from the point of view of the lawyer providing the services). Page 66 is a chart that shows that expenses in law firms, per lawyer, have increased even more than the CPI since 1996.
Exhibit H is a printout of screens from the Bureau of Labor Statistics website, tables showing the increase in median wages of the office file clerk occupation in the Cleveland area in 1999 and in May 2011, the oldest and newest available. This is presumably similar to the occupation of "clerical employees" mentioned in Mathews-Sheets. The original web pages are available for May 2011 and 1999, respectively, at
http://www.bls.gov/oes/1999/oes_1680.htm#b43-0000
Exhibit H shows that the median hourly wages of "43-4071 File Clerk" rose from $8.38 to $12.33 during the period 1999 through May 2011, a 47 percent increase during most of the EAJA increase period, and about the same increase as the claimant is requesting here for the period 1996 through 2011.
Mathews-Sheets also muses in dicta that perhaps changes in law office technology or Social Security procedures have made it cheaper to litigate Social Security cases in court. While such changes may have made it possible to perform the services in less time, that time savings is reflected in the number of hours claimed in the application and should not be double-counted to reduce the inflation adjustment. There has been no reduction in the expense of litigation; if anything, the electronic files and e-filing have increased expenses. The Court can take judicial notice that electronic files may save time of the court and counsel in analyzing Social Security records, but they do not save money.
Finally, the cost of purchasing legal services has risen faster than the general cost of living. Exhibit I is from the Bureau of Labor Statistics database of consumer price indexes, series CUUR0000SEGD01, U.S. city average, "Legal services." It shows that the price of legal services has risen about 92 percent from March 1996 through 2011 (March 1996 = 155.0, 2011 annual = 297.427). Beyond this exhibit, in Social Security court cases the fees that claimants pay, which are based on the amount of past-due benefits, have climbed as inflation has increased the monthly benefit amounts.
Based on this evidence, the increase in the cost of living since 1996 strongly justifies increasing the $125 baseline to at least $184.75, the requested rate. The increase is justified, whether the Court considers the widening gap between the $125 figure on the one hand and the general CPI, attorney billing rates, past-due benefit amounts in Social Security court cases, cost of legal services, or expenses of attorneys on the other.
In almost all prior cases in this court, the agency has not objected to the proposed inflation adjustments. See, e.g., Coleman v. Astrue, 2011 WL 767884 (N.D. Ohio) (Report and Recommendation of Magistrate Judge White, D. 25, adopted by Judge Zouhary D. 27). If the agency in a Response cites cases that have not been published, it is requested to attach copies unless the undersigned was counsel in those cases.
Logically, a national index is best used to adjust the uniform national cap of $125 that Congress set in 1996, although the agency recently has begun advocating a regional index. The EAJA speaks of an increase in "the" cost of living.
EAJA fees are computed in a two-step process, the first being local prevailing rates, the second being a national hourly-rate cap adjusted upwards for national inflation. The agency has taken inconsistent positions over time as to whether city, regional, or national CPI indexes should be used. The cap was set in 1996 to be the same $125 everywhere — low-cost areas as well as high-cost areas. That national parity should continue through the inflation-adjustment process to keep the effect of the uniform rate cap that was chosen by Congress.
Practically, using a regional-inflation adjustment to a national figure would give paradoxical results, since a higher-cost area that has had slower-than-average cost growth since 1996 would have a lower fee cap than a lower-cost area that has had more inflation since 1996. It would be like awarding the race to the runner who had the best time on the last lap, regardless of how far behind the pack that runner had fallen at the start of the last lap. See Jawad v. Barnhart, 370 F.Supp.2d 1077 (S.D. Cal. 2005). See also, Sullivan, supra, 958 F.2d 574 (4th Cir. 1992) (using the national all-items index over a challenge by a claimant).
This application requests 2.7 hours of services by counsel's appellate assistant Shriver at $40 per hour. The services relate to careful docketing and preparation. They were necessary, reasonably performed in the hours listed, and saved the attorneys time that they would have had to bill at a much higher rate. The services were akin to those of a litigation paralegal. Precise docketing and case management are required by the Court. Fees incurred for paralegal, legal assistant, and clerical assistant services are compensable under the EAJA. Kling v. Secretary of Department of Health & Human Services, 790 F.Supp. 145, 152 (N.D. Ohio 1992).
The services cannot be dismissed as "overhead." Since EAJA fees are capped at below-market rates, overhead is separately awarded. The legislative history of the EAJA shows that the full necessary cost of Plaintiff's litigation was to be compensated, with the narrow exception that the hourly rate payable for the attorney's services was to be limited by a statutory ceiling. The congressional committee's report stated, "The ceiling on attorney fees relates only to the compensation of lawyers or agents (e.g. accountants themselves). It does not include their overhead expenses or other costs connected with their representation of a particular interest in a proceeding." H.R. Rep No. 1418, 96th Cong., 2d Sess. 15 (1980), reprinted in 1980 U.S. Code Cong. & Admin. News 4953, 4994 [emphasis supplied].
The application asks that the plaintiff be awarded the fees and expenses, and stated that plaintiff has assigned to the attorney the right to be paid the EAJA fee.
The EAJA award should be made in the name of plaintiff so that any pre-existing debts of plaintiff's to the United States that are subject to offset can be collected by the government; if there is no such debt, the EAJA award is paid to counsel pursuant to the assignment.
Plaintiff requests an award of attorney fees as requested herein.
