United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
PHILLIP J. GREEN United States Magistrate Judge.
was a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the
Commissioner of Social Security denying plaintiff's claim
for Disability Insurance Benefits (DIB). On April 18, 2017,
this Court entered a judgment 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. 18). On June
7, 2017, plaintiff filed a notice of application for
attorney's fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. (ECF No. 20). For the reasons
set forth herein, plaintiff's application will be
The 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). A
district court's decision granting or denying a motion
for attorney's fees under the EAJA is reviewed on appeal
under a deferential Aabuse of discretion-standard. DeLong
v. Commissioner, 748 F.3d 723, 725 (6th Cir. 2014).
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 that would warrant a
denial of fees. See DeLong v. Commissioner, 748 F.3d
at 725. Plaintiff is a prevailing party under this
Court's judgment remanding this matter to the
Commissioner. See Shalala v. Schaefer, 509 U.S. 292,
298 (1993); 28 U.S.C. § 2412(d)(2)(H). Plaintiff is a
financially eligible person under the EAJA. See 28
U.S.C. §2412(d)(2)(B). Defense counsel has assented to
this application. Plaintiff is entitled to an award of
attorney's fees under the EAJA.
United States Court of Appeals for 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).
The 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 27.5
hours in attorney time. (ECF No. 20, PageID.753, 758-59).
a reasonable expenditure of time for representation of a
party seeking judicial review of the Commissioner's final
administrative decision denying claims for DIB and SSI
benefits is in the range of 15 to 30 hours. See Flamboe
v. Commissioner, No. 1:12-cv-606, 2013 WL 1914546, at *
2 (W.D. Mich. May 8, 2013); see also Fredericks v.
Commissioner, No. 1:12-cv-1234, 2014 WL 4057794, at * 2
(W.D. Mich. Aug. 14, 2014); Nichols v. Commissioner,
No. 1:09-cv-1091, 2012 WL 1189764, at * 2 (W.D. Mich. Mar.
19, 2012) (collecting cases). “Unlike other types of
civil cases in which the amount of discovery alone often
creates wide variability in litigation hours, the vast
majority of social security appeals conform to a relatively
narrow range of hours because they involve a largely settled
area of law, require no discovery, and follow a precise
briefing schedule[.]” Flamboe v. Commissioner,
2013 WL 1914546, at * 2 (quoting Crim v.
Commissioner, No. 1:11-cv-137, 2013 WL1063476, at *4
(S.D. Ohio Mar. 14, 2013)).
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). Plaintiff
seeks to recover attorney's fees at a rate of $175 for
work performed in this Court. (ECF No. 20, Page ID.754, 759).
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).
consensus has emerged in this Court regarding whether the
State Bar of Michigan's Economics of Law Practice Survey
is sufficient evidence to justify a departure above the
statutory $125 per hour cap to an hourly rate of up to $175
per hour. Compare Sorensen v. Commissioner, No.
1:14-cv-719, 2015 WL 1003098, at * 2-4 (W.D. Mich. Mar. 5,
2015) ($125 per hour) with Shellman v. Commissioner,
No. 1:13-cv-959, 2014 WL 1875107, at * 2 (W.D. Mich. May 8,
2014) ($175 per hour).
Thompson v. Commissioner, Judge Jonker found that
the State Bar survey did not warrant a ...