United States District Court, W.D. Michigan, Southern Division
JAMES O. MOORE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Phillip J. Green United States Magistrate Judge.
was a social security action brought under 42 U.S.C. §
405(g) seeking review of a final decision of the Commissioner
of Social Security denying plaintiff's claims for
disability insurance benefits (DIB). On September 25, 2015,
this Court entered an order reversing the Commissioner's
decision, and remanding this matter to the Commissioner under
sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings. (ECF No. 20). The matter is now
before the Court on plaintiff's motions for
attorney's fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. (ECF No. 21). The Commissioner
has failed to respond. For the reasons set forth herein, I
recommend that plaintiff's motion be granted, and that a
judgment be entered in plaintiff's favor in the amount of
EAJA provides in relevant part:
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 . . ., including proceedings for judicial
review of agency action, brought by or against the United
States . . ., 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 Astrue v.
Ratliff, 560 U.S. 586, 591-93 (2010). The Sixth Circuit
has identified three conditions that must be met to recover
attorney's fees under the EAJA: (1) the claimant must be
a prevailing party; (2) the government's position must be
without substantial justification; and (3) there are no
special circumstances which would warrant a denial of fees.
See DeLong v. Commissioner, 748 F.3d 723, 725 (6th
Cir. 2014); Marshall v. Commissioner, 444 F.3d 837,
840 (6th Cir. 2006). Plaintiff is a prevailing party under
this Court's order remanding this matter to the
Commissioner. See Shalala v. Schaefer, 509 U.S. 292,
298 (1993). Plaintiff is a financially eligible person under
the EAJA. The Commissioner has filed no response; much less
has she offered any special circumstance that would warrant
denial of fees, or made any attempt to satisfy the burden of
demonstrating that the government's position was
substantially justified. See Scarborough v.
Principi, 541 U.S. 401, 414 (2004); Peck v.
Commissioner, 165 F.App'x 443, 446 (6th Cir. 2006).
Plaintiff is entitled to an award of attorney's fees and
other costs under the EAJA. See 28 U.S.C. §
a court makes a threshold determination that a party is
eligible for EAJA fees, it looks to the lodestar amount as a
starting point for calculating a reasonable fee award.”
Minor v. Commissioner, 826 F.3d 878, 881(6th Cir.
2016). The Sixth Circuit has cautioned lower courts against
“rubber stamping” EAJA fee applications. See
Begley v. Secretary of Health & Human Servs., 966
F.2d 196, 200 (6th Cir. 1992).
EAJA requires “an itemized statement from [the]
attorney . . . representing or appearing in behalf of the
party stating the actual time expended and the rate at which
fees and other expenses were computed.” 28 U.S.C.
§ 2412(d)(1)(B). Plaintiff seeks compensation for 26.95
hours in attorney time and 4.62 hours of non-attorney law
clerk time. (ECF No. 21, PageID.645). I find that this is
reasonable for the work performed in this case.
EAJA generally caps the hourly rate for attorney's fees
at $125 per hour. 28 U.S.C. § 2412(d)(2)(A).
“[T]he statutory rate is a ceiling and not a
floor.” Chipman v. Secretary of Health & Human
Servs., 781 F.2d 545, 547 (6th Cir. 1986).
seeks to recover at an hourly rate of $175.00 for the
attorney time and $100.00 for law clerk time. (ECF No.21,
Page.ID.642, 644). The requested rate is well above the
statutory cap. The EAJA specifies that “attorney's
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
Supreme Court has determined that the statutory $125 per hour
cap applies “in the mine run of cases.”
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).
Judge Quist has endorsed a rate of up to $175.00 per hour as
a reasonable rate based on the State Bar's Economics of
Law Practice in Michigan survey. Miller v.
Commissioner, No. 1:12-cv-809, 2013 WL 3283694, at *2
(W.D. Mich. June 28, 2013). Accordingly, the higher rate of
$175.00 is used herein. Multiplying the 26.95 attorney hours
expended by the $175.00 hourly rate results in a $4, 716.25
in this district have found $100.00 per hour to be a
reasonable rate for law clerk time. See, e.g.,
Nichols v. Commissioner, No. 1:09-cv-1091, 2012 WL
1189764, at *2 (W.D. Mich. Mar. 19, 2012). Multiplying the
4.62 law clerk hours by the $100.00 hourly rate results in a
$462.00 total. The lodestar grand total is $5, 178.25. I find
that plaintiff is entitled to recover this amount in fees
under the EAJA.