IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TERESA L. BALDWIN,

Plaintiff,

 Civil Action 2:12-cv-298

v. Judge Michael H. Watson

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

 

Defendant. 

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s Motion for Award of

Attorney Fees and Costs Pursuant to the Equal Access to Justice Act. (ECF No. 25.) For the

reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be GRANTED.

I.

Plaintiff filed this action on April 5, 2012, seeking review of an adverse decision of the

Commissioner of Social Security (“Commissioner”). (ECF No. 1.) On August 9, 2013, this

Court reversed the Commissioner’s nondisability finding and remanded this case to the

Commissioner and the Administrative Law Judge pursuant to Sentence Four of 42 U.S.C. §

405(g). (ECF No. 23.) 

On November 7, 2013, Plaintiff filed the instant Motion seeking an award of attorneys’

fees under the Equal Access to Justice Act (“EAJA”). (ECF No. 25.) The Commissioner has not

opposed Plaintiff’s Motion. 

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II.

Plaintiff seeks an award of attorney’s fees in the amount of $5,650.78. She also seeks

expenses of $350. The EAJA provides as follows:

Except as otherwise specifically provided by statute, a court shall award to a

prevailing party other than the United States fees and other expenses, in addition to

any costs awarded pursuant to subsection (a), incurred by that party in any civil

action (other than cases sounding in tort), including proceedings for judicial review

of agency action, brought by or against the United States in any court having

jurisdiction of that action, 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). Accordingly, a party will generally be entitled to attorney’s fees

under the EAJA when he or she is the prevailing party and the government’s position was not

substantially justified. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007)

(outlining requirements under the EAJA). The Commissioner “bears the burden of

demonstrating that its position was substantially justified.” Pickering v. Mukasey, 306 F. App’x.

246, 247 (6th Cir. 2009).

The EAJA limits recovery of attorney’s fees to $125 per hour unless the Court concludes

that the circumstances justify a higher rate: 

The amount of fees awarded . . . shall be based upon prevailing market rates for the

kind and quality of the services furnished, except 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). In analyzing the EAJA, the United States Court of Appeals for the

Sixth Circuit has emphasized that the “statutory rate is a ceiling and not a floor.” Chipman v.

Sec’y of Health & Hum. Servs., 781 F.2d 545, 547 (6th Cir. 1986). Furthermore, “[i]n requesting

an increase in the hourly-fee rate, [p]laintiffs bear the burden of producing appropriate evidence

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to support the requested increase.” Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir.

2009) (citation omitted). Accordingly, the Sixth Circuit has held 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.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895

n.11 (1984)).

In determining the appropriate rate, the Court may allow for a cost of living adjustment to

justify an award in excess of $125 per hour. Begley v. Sec’y of Health & Hum. Servs., 966 F.2d

196, 199 (6th Cir. 1992). The determination of whether a cost of living increase justifies a fee in

excess of the $125 rate is left to the Court’s discretion. Id. It is not sufficient, however, that a

party submit only the Department of Labor’s Consumer Price Index and argue that inflation

justifies an increase in fees. Bryant, 578 F.3d at 450.

III.

There is no dispute that Plaintiff was the prevailing party within the meaning of the

EAJA. The Commissioner has not opposed the timeliness of Plaintiff’s Motion. Nor has the

Commissioner opposed Plaintiff’s requested fees. The Commissioner has therefore failed to

demonstrate that her position was substantially justified. Because Plaintiff requests an hourly

rate greater than $125 per hour, the Undersigned now considers whether she has offered

satisfactory evidence in supported of her attorneys’ requested rates before turning to the issue of

the proper recipient of the fees. 

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A. Hourly Rate

Plaintiff seeks an award of attorneys’ fees in the amount of $5,650.78 for 24.2 hours

expended by attorney Ressler, 5.2 hours expended by attorney Roose, and 4.6 hours expended by

legal assistant Shriver. Plaintiff requests an hourly rate of $184.38 for the services performed by

Attorneys Roose and Ressler and an hourly rate of $50.00 for the services performed by legal

assistant Shriver. 

In support of the requested hourly rates, Plaintiff has submitted the following

documentation: an affidavit from attorney Roose; affidavits from other members of the local bar;

excerpts from an hourly billing rate survey for the State of Ohio conducted by the Ohio State Bar

Association; a 2011 survey conducted and published by the National Law Journal; webpage

printouts from the Bureau of Labor Statistics reflecting clerical wage data for the

Cleveland/Elyria/Mentor, Ohio area; the Consumer Price Index; and resumes for Roose, Ressler,

and Shriver. Plaintiff has also cited a number of decisions finding that the requested rates are in

line with the rates awarded in actions in the community for similar services offered by lawyers of

comparable skill and experience. 

The Undersigned has reviewed the foregoing evidence and concludes that Plaintiff has

sufficiently supported her attorneys’ requested rate increase of $184.38 per hour. 

B. Proper Recipient of Attorney Fees Under EAJA

Plaintiff requests that the fees be paid directly to her attorney; her counsel “consents to

have the EAJA award made to Plaintiff, because of the unlikely possibility that [she] owes a

federally collected debt.” (Pl.’s Mot. 7, ECF No. 25.) 

 In Astrue v. Ratliff, 560 U.S. 586 (2010), a social security case considering the

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Commissioner’s payment of attorney’s fees under the EAJA, the Supreme Court held that “a

§ 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to

satisfy pre-existing debt that the litigant owes the United States.” Id. at 589. The Ratliff Court

noted that “the Government has since continued the direct payment practice only in cases where

the plaintiff does not owe a debt to the [G]overnment and assigns the right to receive the fees to

the attorney.” Id. at 597.

Here, the Court is unaware of whether Plaintiff owes a debt to the United States. Thus,

the Undersigned finds that under Ratliff, the proper course is to award fees directly to Plaintiff

and remain silent as to the direction of those fees. See Simpson v. Astrue, No. 3:09-cv-143, 2010

WL 5088128, at *5 (S.D. Ohio Nov. 17, 2010) (Merz, M.J., Report and Recommendation

subsequently adopted) (“Because it is not known in the present case whether or not Plaintiff

owes a debt to the United States, ‘[i]n light of Ratliff, . . . it [is] a better practice to simply award

the EAJA fees directly to Plaintiff as the prevailing party and remain silent regarding the

direction of payment of those fees. It is not the duty of the Court to determine whether Plaintiff

owes a debt to the government that may be satisfied, in whole or in part, from the EAJA fees

award.’” (quoting Preston v. Astrue, No. 3:08-cv-991, 2010 WL 3522156, at *2 (M.D. Fla. Sept.

8, 2010)). The Undersigned notes, however, that if Plaintiff does not owe such a debt to the

United States, the Government should honor an assignment of Plaintiff’s of EAJA fees to her

counsel. See Ratliff, 130 S.Ct. at 2530 (Sotomayor, J., concurring) (“[T]he litigant’s obligation

to pay her attorney is controlled not by the EAJA but by contract and the law governing that

contract.”); Bishop v. Astrue, No. 3:08CV00375, 2010 WL 4279185, at *4 (S.D. Ohio Sept. 29,

2010) (Ovington, M.J., Report and Recommendation subsequently adopted) (“The Government

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retains the discretion and authority to determine whether Plaintiff owes a debt to it . . . . If no

such unpaid debt exists, or if the EAJA fees remain after a government offset, there appears no

reason on the present record for the Government not to honor Plaintiff’s assignment . . . .”). 

IV.

In sum, Plaintiff has provided satisfactory evidence to support her counsel’s requested

rate of $184.38 per hour. It is therefore RECOMMENDED that the Court GRANT Plaintiff’s

Application for Attorney Fees Under the Equal Access to Justice Act and AWARD Plaintiff fees

in the amount of $5,650.78 and expenses in the amount of $350.00. (ECF No. 25.) 

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

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magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: February 6, 2014 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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