UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONNA J. GRADY, :

 Plaintiff, :

 Case No. 2:11-cv-0763

 v. :

MICHAEL J. ASTRUE, : JUDGE GREGORY L. FROST

Commissioner of Social Magistrate Judge Kemp

Security, :

 Defendant. :

OPINION AND ORDER

On January 3, 2012, the Court remanded this social security

case to the Commissioner pursuant to 42 U.S.C. §405(g), sentence

four, based on the parties’ joint motion. On January 10, 2012,

plaintiff moved for an award of attorneys’ fees under the Equal

Access to Justice Act, 28 U.S.C. §2412. An amended motion was

filed on January 17, 2012. The Commissioner has filed a

memorandum in opposition to the motion. Plaintiff has not

replied. For the following reasons, plaintiff’s motion will be

granted, although the Court will reduce the requested fee by

$175.00.

 I. The Equal Access to Justice Act

The Equal Access to Justice Act, 28 U.S.C. §2412, provides,

in pertinent part, that the Court shall award to a prevailing

party other than the United States reasonable attorneys' fees and

expenses "unless the court finds that the position of the United

States was substantially justified or that special circumstances

make an award unjust." 

 The party seeking an award of such fees and expenses is

required to submit a fee application to the court within 30 days

of the date that the judgment became final and non-appealable. 

The application must demonstrate that the party is a prevailing

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party and is eligible to receive a fee award. It must also

document the amount sought, including an itemized statement from

the attorney or attorneys involved, and must allege that the

position of the United States was not substantially justified. 

The court is then required to determine, on the basis of the

record, whether the position of the United States was

substantially justified. Attorneys' fees are limited to the rate

of $125.00 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." 

 Once a petition has been filed alleging that the position of

the United States was not substantially justified, the United

States has the burden of demonstrating such justification. See

Miller v. United States, 831 F. Supp. 1347, 1351 (M.D. Tenn.

1993) ("The burden lies with the government to demonstrate that

its position was substantially justified ...."); Weber v.

Weinberger, 651 F.Supp. 1379, 1388 (E.D. Mich. 1987) ("with

respect to an application for attorney's fees the Government has

the burden of showing that its position was substantially

justified."); see also Howard v. Heckler, 581 F. Supp. 1231, 1233

(S.D. Ohio 1984). The question of whether the United States’

position is substantially justified is determined based upon the

standards set forth in Pierce v. Underwood, 487 U.S. 552 (1988). 

In Pierce, the Court concluded that the phrase "substantially

justified" as used in the EAJA means justified "to a degree that

could satisfy a reasonable person." Pierce, supra, at 565. As

the Court noted, that test "is no different from the 'reasonable

basis both in law and fact' formulation adopted by the Ninth

Circuit and the vast majority of other Courts of Appeals that

have addressed this issue." Id., citing, inter alia, Trident

Marine Construction, Inc. v. District Engineer, 766 F.2d 974 (6th

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Cir. 1985). An agency decision that is not supported by

substantial evidence may still be one that has a reasonable basis

in law and fact. Jankovich v. Bowen, 868 F.2d 867 (6th Cir.

1989). Consequently, this Court is required to apply the

"reasonable basis in law and fact" test set forth in Trident

Marine Construction to this application for attorneys’ fees.

II. The Parties’ Positions.

Counsel has applied for an award of $2,362.50, representing

13.50 hours of work billed at the rate of $175.00 per hour. 

Plaintiff argued that the issues which led the Commissioner to

agree to a joint motion for remand show that the Commissioner’s

position was not substantially justified.

In response, the Commissioner does not take issue with the

concept of a fee award. However, the Commissioner argues that

the amount requested is excessive. That argument is based on two

different concerns: that the hours spent by counsel include

ministerial tasks for which counsel should not be compensated,

and that the hourly rate should not exceed $125.00. 

III. Analysis

As the Commissioner points out, counsel spent a total of

1.25 hours forwarding a copy of the complaint to the plaintiff,

receiving and reviewing an affidavit signed by the plaintiff

assigning to counsel any fees awarded under the EAJA, downloading

the answer and transcript, and electronically filing the

statement of errors. The Court agrees that tasks such as mailing

documents to the client and either uploading or downloading

electronically filed documents can be performed by clerical

personnel, although an attorney should ordinarily supervise in

some fashion the filing of documents. The EAJA, §2412(b), allows

the Court to award “reasonable fees and expenses of attorneys,”

and “[t]ime spent on secretarial or clerical tasks is not

‘reasonable’ if such tasks are performed by an attorney.” Vesely

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v. Commissioner of Social Sec., 2010 WL 439096, *3 (S.D. Ohio

Feb. 2, 2010). The Court has disallowed fees for clerical tasks

such as receiving documents. See, e.g., Stanley v. Astrue, 2011

WL 1691836 (S.D. Ohio May 4, 2011). 

Here, apart from review of the assignment signed by the

plaintiff, the tasks highlighted by the Commissioner appear to be

clerical in nature. However, it is reasonable for an attorney to

review a legal document which the client has signed in order to

make sure it is in proper form. Therefore, the Court will

disallow one hour of the time for which fees are requested,

rather than the full 1.25 hours with which the Commissioner took

issue.

As to the requested hourly rate, the Commissioner does not

disagree that the EAJA permits the Court to award a rate in

excess of $125.00 based upon increases in the Consumer Price

Index, but argues that the rate produced by taking the CPI into

account serves merely as a ceiling to cap fee awards, and that

the Court should scrutinize closely any request for an hourly

rate exceeding $125.00. Here, the Commissioner contends that

counsel has not submitted enough documentation, particularly

about the requested fee of $175.00 as being in line with

customary charges for like legal services in this community, to

allow the Court to grant an increase in the rate.

As the Commissioner points out, in Bryant v. Commissioner of

Social Sec., 578 F.3d 443 (6th Cir. 2009), the Court of Appeals

held that simply providing evidence of the amount by which the

CPI has increased is not enough to justify an increase in the

allowable hourly rate. That decision also quoted language from

Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) (which was not an

EAJA case) that something more than the attorney’s own affidavit

should be provided to the Court in order prove that the rate

requested is in line with what is customarily charged in the

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community. The Commissioner argues that because the only

evidence on that issue is counsel’s affidavit, that is not enough

to satisfy Bryant.

The language quoted from Blum is dictum, however, because

that decision did not turn on the level of support adduced by

counsel for the hourly rates they requested, nor did the Supreme

Court appear to be fashioning an evidentiary rule to be applied

in a wooden fashion in all cases where attorneys’ fees are

requested. Rather, it simply observed in the quoted footnote

that “[t]o inform and assist the court in the exercise of its

discretion, the burden is on the fee applicant to 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.” Blum,

supra. Bryant did hold that it is counsel’s burden to submit

“appropriate evidence to support the requested increase,” but

that case, too, did not turn on the adequacy of any affidavit

about customary fees, but rather on the counsel’s failure to

submit any evidence at all apart from the Department of Labor’s

CPI reports. Id. at 450. This Court is reluctant to impose an

absolute requirement in these cases that unless someone other

than plaintiff’s counsel submits an affidavit about prevailing

rates in the community, the Court must categorically deny any

increase in the EAJA hourly rate.

The cases cited by the Commissioner where courts in this

district have refused to award a rate increase are not to the

contrary. Each of them dealt with an attorney’s failure to

submit any evidence - even the attorney’s own affidavit - which

addressed prevailing rates charged in the community for similar

work performed by attorneys with similar experience and

expertise. For example, in Wise v. Astrue, 2010 WL 5071040 (S.D.

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Ohio December 7, 2010), a decision issued by Judge Marbley, a

rate increase was denied because counsel’s affidavit stated that

his customary hourly rate was $125.00 - the same as the base rate

under the EAJA - and he did not submit any evidence about

customary rates in the community. In the other decisions cited

at page three of the Commissioner’s memorandum, counsel either

failed to submit any affidavit at all (even one swearing to the

time entries), see Delver v. Astrue, 2011 WL 4914963 (S.D. Ohio

Sept. 9, 2011), adopted and affirmed 2011 WL 4914875 (S.D. Ohio

Oct. 17, 2011), or counsel’s affidavit did not address the issue

of customary or prevailing rates in the legal community. See,

e.g., Brown v. Commissioner of Social Sec., 2011 WL 5595931, *5

(S.D. Ohio October 7, 2011)(“Counsel has not submitted any

evidence of her own customary hourly rate or the prevailing rate

in the local community charged by Social Security practitioners

of similar skill, experience, and reputation”), adopted and

affirmed 2011 WL 5596918 (S.D. Ohio Nov. 17, 2011).

Here, by contrast, counsel has submitted his own affidavit

which indicates that he has 28 years of experience in social

security disability litigation, that his normal hourly rate in

non-contingent fee matters is at least $300.00 per hour, and that

the rate of $175.00 per hour is “consistent with fees customarily

charged in this locality for similar legal services in Social

Security cases.” Affidavit of Clifford M. Farrell, Exhibit B to

Plaintiff’s motion for fees, ¶6. There is nothing to suggest

that Mr. Farrell is not a competent witness on this issue, and

the federal government long ago (apparently as early as 1864, see

Rice v. Martin, 8 F. 476 (C.C. Nev. 1881)), abandoned the notion

of disqualifying witnesses on grounds that they have a financial

interest in the outcome of judicial proceedings. Mr. Farrell’s

affidavit is sufficient to “inform and assist the court in the

exercise of its discretion” concerning increasing the hourly

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rate. Decisions from other judges of this Court have approved a

rate increase based on counsel’s own affidavit as long as it

adequately addresses the issue of prevailing or customary rates

in the community for someone with similar experience and

expertise. See, e.g., Sturgeon v. Commissioner of Social Sec.,

2009 WL 5194385 (S.D. Ohio Dec. 22, 2009); see also McKenzie v.

Commissioner of Social Sec., 2011 WL 2580279 (S.D. Ohio June 6,

2011), adopted and affirmed 2011 WL 2580139 (S.D. Ohio June 29,

2011). Other district courts within this circuit have either

done likewise or have used their own prior knowledge of

prevailing and customary rates to support an increase in the EAJA

rate. See, e.g., Karadsheh v. Commissioner of Social Security,

2010 WL 4259644 (W.D. Mich. Sept. 17, 2010), adopted and affirmed

2010 WL 4259616 (W.D. Mich. Oct. 20, 2010).

Here, Mr. Farrell’s affidavit speaks to all of the relevant

factors, and the Court accepts it as persuasive, especially in

view of the Commissioner’s failure to submit any countervailing

evidence. Thus, although the Court will reduce the claimed

number of hours of service from 13.50 to 12.50, it will

compensate counsel at the requested rate of $175.00 per hour. 

That calculation produces an award of $2,187.50.

 IV. Disposition and Order

For the foregoing reasons, plaintiff’s motion for an award

of attorneys’ fees and costs under the Equal Access to Justice

Act (Doc. 13, as amended by Doc. 14) is GRANTED. Plaintiff is

awarded the total sum of $2,187.50. The award shall be payable

to the plaintiff unless the Social Security Administration can

verify that plaintiff owes no pre-existing debt subject to offset

and agrees to make payment directly to plaintiff’s attorney.

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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