The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEMEITOUS FRANCIS o/b/o A.B. CIVIL ACTION
VERSUS NO. 18-13862
ANDREW SAUL, COMMISSIONER OF THE SECTION: “G”(4)
SOCIAL SECURITY ADMINISTRATION
ORDER AND REASONS
Before the Court is Plaintiff Semeitous Francis’ (“Plaintiff”) “Motion for Attorney’s Fees
and Costs under the Equal Access to Justice Act.”1 Defendant the Commissioner of the Social
Security Administration (the “Commissioner”) opposes the motion in part.2 Having considered the
motion, the memoranda in support and in opposition, the record, and applicable law, for the reasons
that follow, the Court grants the motion in part and denies it in part.
I. Background
On December 14, 2018, Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for review
of the final decision of Defendant denying her claim on behalf of her minor daughter, A.B., for
supplemental security income (“SSI”) under the Social Security Act (the “Act”).3 This matter was
referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule
73.2(B). On May 22, 2019, the Commissioner answered the Complaint.4
1 Rec. Doc. 27.
2 Rec. Doc. 29.
3 Rec. Doc. 1.
4 Rec. Doc. 12.
On March 2, 2020, the Magistrate Judge recommended that this Court affirm the ALJ’s
decision denying Plaintiff’s application for SSI on behalf of A.B.5 After Plaintiff filed timely
objections to the Report and Recommendation, the Court reviewed Plaintiff’s claims de novo.6 On
March 30, 2020, the Court declined to adopt the recommendation and remanded this matter to the
ALJ pursuant to 42 U.S.C. § 405(g) for a new hearing.7
Plaintiff filed the instant motion for attorney’s fees on June 30, 2020.8 On July 7, 2020, the
Commissioner filed an opposition to Plaintiff’s motion for attorney’s fees.9
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of Motion for Attorney’s Fees
Plaintiff asserts that she is entitled to attorney’s fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d).10 Plaintiff contends that she is a prevailing party under the
EAJA.11 Therefore, she argues that she is entitled to attorney’s fees unless the Commissioner can
prove that her position in this matter was “substantially justified.”12
5 Rec. Doc. 19 at 17.
6 Rec. Doc. 24.
7 Id.
8 Rec. Doc. 27.
9 Rec. Doc. 28.
10 Rec. Doc. 27-1 at 1.
11 Id. at 2.
12 Id.
2
Plaintiff requests attorney’s fees in the amount of $5,947.50.13 This amount is based on an
hourly rate of $195.00 and 30.50 hours of work.14 She argues that the hourly rate of $195.00 is
calculated on the basis of the $125.00 hourly rate authorized by the EAJA enhanced by the increase
in the cost of living.15 Plaintiff also requests recovery of court costs, but she does not specify the
costs she is seeking to recover.16 Finally, Plaintiff submits an executed assignment of rights to any
attorney’s fees under the EAJA fees to her attorney, Robyn R. Griffin.17
B. The Commissioner’s Memorandum in Opposition
The Commissioner filed a memorandum in opposition disputing the request for recovery
of costs, the hourly rate requested by Plaintiff, and the request that fees be awarded to Plaintiff
rather than her attorney.18 First, the Commissioner objects to Plaintiff’s request for recovery of
costs because Plaintiff proceeded in forma pauperis in this litigation.19 The Commissioner notes
that the relevant statute instructs that the United States shall not be liable for costs incurred in a
case where an individual proceeds in forma pauperis.20 Therefore, the Commissioner argues that
costs should not be awarded to Plaintiff in this case.21
13 Id.
14 Id.
15 Id.
16 Id.
17 Rec. Doc. 27-3.
18 Rec. Doc. 29.
19 Id. at 1.
20 Id. at 1–2 (citing 28 U.S.C. § 1915(f)(1)).
21 Id. at 2.
3
Second, the Commissioner asserts that the Court should award attorney’s fees consistent
with the Consumer Price Index for the South Urban B area (“CPI-B”).22 According to the
Commissioner, the CPI-B suggests an EAJA rate of $191.85 per hour for work performed in 2018
and $194.36 per hour for work in 2019 and 2020.23 Therefore, the Commissioner argues that the
award in this case should be $1,103.14 for 2018 ($191.85 × 5.75 hours); $2,089.37 for 2019
($194.36 × 10.75 hours) and $2,721.04 ($194.36 ×14 hours) for a total of $5,913.55.24 Finally, the
Commissioner notes that the Supreme Court has held that EAJA awards are payable directly to
Plaintiff, as the prevailing party, not the attorney.25
III. Law and Analysis
Under the EAJA, the Court shall award to a prevailing party 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.”26
Here, Plaintiff is a prevailing party entitled to attorney’s fees under the EAJA. Moreover, the
Commissioner does not argue that her position was substantially justified or that special
circumstances make an award of attorney’s fees unjust. Instead, the Commissioner only disputes
the request for recovery of costs and the hourly rate requested by Plaintiff.
22 Id.
23 Id. at 3.
24 Id.
25 Id. at 4 (citing Astrue v. Ratliff, 560 U.S. 586, 591–598 (2010)).
26 28 U.S.C. § 2412(d)(1)(A).
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Plaintiff requests recovery of court costs, but she does not specify the costs she is seeking
to recover.27 Pursuant to 28 U.S.C. § 1915(f)(1), “the United States shall not be liable for any of
the costs [] incurred” in a case where the plaintiff proceeds in forma pauperis.28 Accordingly,
Plaintiff is not entitled to the recovery of court costs.
Plaintiff requests that the Court award fees at an hourly rate of $195.29 The Commissioner
asserts that the Court should award attorney’s fees consistent with the CPI-B.30 According to the
Commissioner, the CPI-B suggests an EAJA rate of $191.85 per hour for work performed in 2018
and $194.36 per hour for work in 2019 and 2020.31 Under the EAJA, “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 ability of qualified attorneys for the proceedings involved,
justifies a higher fee.”32 The district court has discretion to increase this hourly rate beyond the
statutory cap in order to arrive at a reasonable rate for attorney’s fees in a particular market.33
The Fifth Circuit has 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.”34 The EAJA was
27 Rec. Doc. 27-1 at 2.
28 28 U.S.C. § 1915(f)(1).
29 Rec. Doc. 27-1 at 2.
30 Rec. Doc. 29 at 2.
31 Id. at 3.
32 28 U.S.C. § 2412(d)(2)(A)(ii).
33 Yoes v. Barnhart, 467 F.3d 426, 426 (5th Cir. 2006) (per curiam) (“The Equal Access to Justice Act vests
the district courts with discretion to arrive at a reasonable rate for attorneys’ fees based on cost-of-living adjustments
and other factors. . . . These factors are market based.”).
34 Perales v. Casillas, 950 F.2d 1066, 1076 (5th Cir. 1992).
5
amended in March 1996 to increase the statutory ceiling from $75 to $125 per hour. Therefore, the
Court looks to the cost-of-living increase from March 1996.35 Plaintiff has provided no evidence
of the increase in the cost of living in the New Orleans area during that period. The Commissioner
asserts that the CPI-B is the appropriate metric.36
According to the Bureau of Labor Statistics report, the CPI-B rate was $100 in 1996.37 The
CPI-B rate is $154.447 for 2018, $155.489 for 2019, and $156.169 for the first half of 2020.38
Accordingly, the CPI-B has increased approximately 54.5 percent from 1996 to 2018, 55.5 percent
from 1996 to 2019, and 56.2 percent from 1996 to present. A 54.5 percent increase in the EAJA’s
statutory rate of $125 yields an adjusted hourly rate of $193.13; a 55.5 percent increase in the
EAJA’s statutory rate of $125 yields an adjusted hourly rate of $194.38; and a 56.2 percent increase
in the EAJA’s statutory rate of $125 yields an adjusted hourly rate of $195.25. Considering that
the majority of the work performed occurred in 2019, the Court will round the hourly rate to $194
for all work performed in the instant case. Applying the hourly rate of $194 to the 30.50 hours of
attorney time expended by Plaintiff’s counsel yields a fee of $5,917.
Finally, Plaintiff urges the Court to make the fees award payable to her attorney. Plaintiff
submits a signed assignment of fees stating that she “assign[s] any and all rights to any attorney
fees payable under the Equal Access of Justice Act to [her] attorney, Robyn R. Griffin, and []
35 Id.
36 The Court takes judicial notice of the information in the Consumer Price Index. Fed. R. Evid. 201.
37.See.https://data.bls.gov/timeseries/CUURN300SA0?amp%253bdata_tool=XGtable&output_view=data&
include_graphs=true (last visited Aug. 7, 2020).
38 Id.
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consent[s] to the payment of those fees directly to [her] attorney.”39 In Astrue v. Ratlif, the Supreme
Court held that “a § 2412(d) [EAJA] fees award is payable to the litigant and is therefore subject
to a Government offset to satisfy a pre-existing debt that the litigant owes to the United States.”40
Following this binding precedent, the Court will award attorneys’ fees to Plaintiff, rather than her
attorney.
IV. Conclusion
For the foregoing reasons, the Court grants Plaintiff’s “Motion for Attorney’s Fees” to the
extent that it requests that the Court award attorney’s fees. The Court denies the motion to the
extent that it requests recovery of court costs. The Court also limits the hourly rate to $194 for all
work performed in the instant case. Finally, the Court award attorney’s fees to Plaintiff rather than
Plaintiff’s attorney. Accordingly,
39 Rec. Doc. 27-3.
40 560 U.S. 586, 589 (2010).
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IT IS HEREBY ORDERED that Plaintiffs “Motion for Attorney’s Fees and Costs Under
the Equal Access to Justice Act’*! is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff Semeitous Francis is awarded attorneys’ fees
in the amount of $5,917, representing 30.5 hours of work at a rate of $194 per hour.
IT IS FURTHER ORDERED that attorney’s fees are to be awarded directly to Plaintiff.
NEW ORLEANS, Ne 28th day of 0 2020.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
41 Rec. Doc. 27.