Henline v. Kijakazi
| Docket Number | Civil Action 3:20-CV-1944-D-BH |
| Decision Date | 05 July 2022 |
| Parties | DUANE E. HENLINE, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Referred to U.S. Magistrate Judge[1]
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Before the Court for recommendation is the plaintiff's Petition and Brief for Award of Attorney Fees under the Equal Access to Justice Act, filed April 20, 2022 (doc 26). Based on the relevant findings, evidence, and applicable law, the application should be GRANTED.
On July 23, 2020, Duane E. Henline (Plaintiff) filed a complaint seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner)[2] denying his claims for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. (doc. 1.)[3] On March 22, 2022, the Commissioner's decision was reversed, and the case was remanded for further proceedings. (docs. 21-23.) Plaintiff subsequently moved for an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA). (doc. 26.) The Commissioner does not object to the number of hours claimed or the rate requested for work performed in 2020 and 2021, but objects to the hourly rate requested for work performed in 2022. (doc. 28 at 1.) She also contends that the award should be made payable directly to Plaintiff, not his counsel. (Id. at 4.)
Under the EAJA, a court must award attorney's fees and expenses if (1) the claimant is the “prevailing party”;[4] (2) the Government's position was not “substantially justified”; and (3) there are no special circumstances that make an award unjust. Murkeldove v. Astrue, 635 F.3d 784, 790 (5th Cir. 2011) (citing 28 U.S.C. § 2412(d)(1)(A)). The attorney's fees awarded under the EAJA must be reasonable, however. See 28 U.S.C. § 2412(b). “Because EAJA is a partial waiver of sovereign immunity, it must be strictly construed in the government's favor.” Tex. Food Indus. Ass'n v. USDA, 81 F.3d 578, 580 (5th Cir. 1996) (citation omitted). “In determining the reasonableness of such fees, [the Fifth Circuit] has adopted the 12-factor ‘lodestar' test enunciated in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir. 1974).”[5] Sanders v. Barnhart, No. 0410600, 2005 WL 2285403, at *2 (5th Cir. Sept. 19, 2005) (per curiam). It is, however, “not necessary for a district court to examine each of the factors independently if it is apparent that the court has arrived at a just compensation based upon appropriate standards.” Id. (citing Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987). The claimant has the burden of demonstrating that the hours claimed were reasonably expended on the prevailing claim. Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) (). “[I]t is well established that the most critical factor in determining an award of attorney's fees is the degree of success obtained by the victorious plaintiff [ ].” Northwinds Abatement, Inc. v. Empl'rs. Ins. of Wausau, 258 F.3d 345, 354 (5th Cir. 2001) (internal quotations omitted); see also Hensley, 461 U.S. at 440 ().
Here, as the prevailing party, Plaintiff requests a total of $5,195.57 in attorney's fees for 21.8 hours of attorney work for litigating this appeal in federal court and 2.75 hours of attorney work for preparing and defending the EAJA application. (docs. 26 at 9-10; 29 at 7-8.) This amount is based on 5.8 hours at a rate of $201.20 for work performed in 2020, 14.9 hours at a rate of $211.80 for work performed in 2021, and 3.85 hours at a rate of $226.70 for work performed in 2022. (Id.) He has submitted a billing summary setting out detailed time entries for the legal services rendered by counsel.[6] (doc. 26 at 14-16.) The entries show the amount of time expended for each activity and are organized by the date the legal services were rendered in this case between July 9, 2020 and March 24, 2022.[7] (Id.)
The Commissioner argues that the requested hourly rate of $226.70 for work performed in 2022 is not appropriate under the EAJA. (doc. 29 at 3-4.)
Attorney's fees under the EAJA are subject to a statutory maximum rate of $125 per hour. See 28 U.S.C. § 2412(d)(2)(A). A court may calculate fees using a higher rate based on an increase in the cost of living or other “special factors,” however. Id.; see also Hall v. Shalala, 50 F.3d 367, 369-70 (5th Cir. 1995). The Consumer Price Index (CPI), as furnished by the U.S. Bureau of Labor Statistics (BLS), has been used to determine the appropriate amount for cost of living increases under the EAJA. See Cavazos v. Astrue, No. CA C-09-361, 2011 WL 1004941, at *4 (S.D. Tex. Mar. 1, 2011), adopted by 2011 WL 977519 (S.D. Tex. Mar. 16, 2011) (citing Bode v. United States, 919 F.2d 1044, 1053 n.8 (5th Cir. 1990) (per curiam)). Even though the Fifth Circuit has not specifically determined whether courts should apply the national, regional, or local CPI when calculating fee adjustments under the EAJA, it has emphasized the importance of uniformity in cost-of-living adjustments within courts located in the same city or division. See Yoes v. Barnhart, 467 F.3d 426, 426 (5th Cir. 2006). Courts in this division have routinely used the CPI for the Dallas-Fort Worth area (DFW CPI) to calculate the appropriate hourly rate for attorneys under the EAJA. See Hamblen v. Colvin, 14 F.Supp.3d 801, 807 (N.D. Tex. 2014) (collecting cases). Because fee adjustments need not necessarily “track the cost-of-living index for the geographical area,” and because “unusual circumstances” may sometimes warrant a greater or lesser adjustment, however, federal courts retain the discretion to “conservatively adjust the rate” according to the facts of each case. See Baker v. Bowen, 839 F.2d 1075, 1079 (5th Cir. 1988).
Here, Plaintiff requests that the $125 hourly rate under the EAJA be adjusted using the DFW CPI to calculate the hourly rates for 2020, 2021, and 2022, and provides a table from the BLS with the annual, semi-annual, and monthly CPI numbers for DFW from 1996 to March 2022. (doc. 26 at 7-9, 13.) Plaintiff's calculation of attorney hourly rates for 2020 and 2021 is based on an annual cost-of-living adjustment. (Id. at 8.) Because the index number to calculate the annual cost-of-living adjustment is not available for 2022, Plaintiff calculates the attorney hourly rate for 2022 using a monthly cost-of-living adjustment. (Id. at 7-8.) Using the DFW CPI, the hourly rates for attorney's fees, including a cost-of-living adjustment, is $201.20 for attorney services performed in 2020,[8]$211.80 per hour for attorney services performed in 2021,[9] and $226.70 per hour for attorney services performed in 2022.[10]
The Commissioner objects to Plaintiff's requested 2022 rate, arguing that the Fifth Circuit has “expressly contemplated calculating increases using the appropriate cost-of-living adjustment on an annual basis, and not based on the exact month in which the work was performed.” (doc. 28 at 3 (emphasis original)). She cites Perales v. Casillas, 950 F.2d 1066, 1076 (5th Cir. 1992), which held that “cost-of-living adjustments under the EAJA must be made to reflect the appropriate rate in the year in which the services were rendered.” In Perales, the Fifth Circuit vacated an EAJA fee award for worked performed in November 1988 that was based on a March 1990 cost-of-living calculation. Id. Here, the work was performed in the same month and year of the cost-of-living adjustment used to calculate the requested hourly rate. (See doc. 26 at 7-8.) Accordingly, the hourly rates calculated by Plaintiff are appropriate under the EAJA and should be accepted.
In his reply, Plaintiff also seeks additional fees for the time spent defending the EAJA application. (doc. 29 at 7.)
Under the EAJA, the fee award covers the cost of “all phases of successful litigation” incurred by a party. INS v. Jean, 496 U.S. 154, 164-166 (1990)). This includes the fees incurred in defending a fee application. See Sandoval v. Apfel, 86 F.Supp.2d 601, 616 (N.D. Tex. 2000) (citing Powell v. Commissioner, 891 F.2d 1167, 1170-71 (5th Cir. 1990)) (awarding plaintiff 28.25 hours for attorney services rendered litigating his EAJA claim); see also Yearout v. Astrue, No. 3:10-CV-0430-L-BH, 2011 WL 2988421, at *1 n.1 (N.D. Tex. Mar. 15, 2011) (awarding plaintiff 3.5 hours of attorney work for defending the fee application against Commissioner's objections), adopted by 2011 WL 2990368 (N.D. Tex. July 22, 2011); Dounley v. Astrue, No. 3-08-CV-1388-O-BH, 2010 WL 637797, at *3 n.1 (N.D. Tex. Feb. 23, 2010) ().
Plaintiff contends that he has expended an additional 1.75 hours “reviewing Defendant's pleadings, conducting legal research and drafting this brief.” (doc. 29 at 7.) His request for additional EAJA fees of $396.72 (based on 1.75 hours at an hourly rate of $226.70) for defending against the Commissioner's objections is reasonable for the work performed and should be granted. See Sandoval, 86 F.Supp.2d at 616.
The Commissioner argues, and Plaintiff does not appear to disagree, that the award must be made payable to Plaintiff,...
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