stating that “the cost-of-living” factor should be applied by the district courts and “invit[ing] the district judges of the Eastern District of Louisiana to address any lack of uniformity with a view toward developing the required uniformity.”
How later courts described this case
- stating that “the cost-of-living” factor should be applied by the district courts and “invit[ing] the district judges of the Eastern District of Louisiana to address any lack of uniformity with a view toward developing the required uniformity.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOHN FRANK CIVIL ACTION NO.
VERSUS 24-376-EWD
MARTIN O’MALLEY, *CONSENT*
COMMISSIONER OF SOCIAL SECURITY
RULING AND ORDER
Before the Court is the Motion for Attorney’s Fees (the “Motion”),1 filed by John Frank
(“Plaintiff”). Martin O’Malley, Commissioner of Social Security (“the Commissioner”), filed a
Response to Plaintiff’s Motion for Attorney Fees Pursuant to the Equal Access to Justice Act.2
Plaintiff was the prevailing party in this matter, however, because the Motion lacks support for the
hourly rate sought, it will granted in part. Plaintiff will be awarded a fee of $1,750, which reflects
an hourly attorney fee rate of $175.00, the prevailing rate that has previously been approved in this
Court.
I. BACKGROUND
In this case, Plaintiff appealed the Commissioner’s denial of his social security disability
benefits. Plaintiff filed a Memorandum in Support of Appeal on August 14, 2024.3 On September
4, 2024, the Commissioner filed an Unopposed Motion to Reverse and Remand Pursuant to
Sentence Four of the Social Security Act, 42 U.S.C. § 405(g).4 The Court granted the
Commissioner’s Motion to Remand and issued a Judgment on September 6, 2024.5 On October 4,
1 R. Doc. 19.
2 R. Doc. 20.
3 R. Doc. 14.
4 R. Doc. 16.
5 R. Doc. 17.
2024, Plaintiff filed the Motion, seeking compensation for 10.0 hours of attorney’s fees at an
hourly rate of $220.00.6
The Commissioner does not dispute that Plaintiff is entitled to a fee award. Instead, the
Commissioner argues that the cost of living adjustment sought by Plaintiff, setting an hourly rate
of $220, is excessive given the recent cases awarding fees in this district at a rate of $175 per hour.7
II. LAW AND ANALYSIS
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), provides that a
court shall award attorney fees and costs to a prevailing party in a civil action brought against the
United States.8 Attorney fees shall be awarded to a prevailing party “unless the Court finds that
the position of the United States was substantially justified or special circumstances make an award
unjust.”9 Plaintiff seeks an award of fees in the amount of $2,200.00 (10.0 attorney hours at an
hourly rate of $220).10 The Commissioner disputes only the hourly rate that should be paid.
A. Plaintiff’s Request for Attorney Fees Will Be Granted in Part
Under the EAJA, “a court cannot award a fee exceeding $125 per hour unless the court
determines that an increase in the cost of living or a special factor…justifies a higher fee.”11 In
Baker v. Bowen, the Fifth Circuit held that the statute and the underlying Congressional intent
“clearly allows an adjustment for changes in the cost of living,” but “does not absolutely require
6 R. Doc. 19.
7 R. Doc. 20.
8 28 U.S.C. § 2412.
9 28 U.S.C. § 2412(d)(1)(A).
10 R. Doc. 19-1, p. 6.
11 28 U.S.C. § 2412(d)(2)(A)(ii).
it.”12 As noted in this court’s decision in Gann, while it is in the court’s discretion to make an
adjustment to the EAJA cap, when a locale has experienced a significant increase in the cost of
living, the Court “should increase the hourly rate beyond the nominal statutory cap.”13 This Court
last approved an hourly rate of $175.00 for attorney’s fees in social security appeals.14
Here, Plaintiff is requesting $220 per hour, instead of $175.00, due to rises in the cost of
living, increases in billing practices by New Orleans attorneys, raises by other courts within the
Fifth Circuit, and counsel’s status in his firm as an equity partner and specialization in social
security law.15 Conversely, the Commissioner argues that the cost of living adjustment is
unreasonable given recent cases in this district.16
In support of his argument for an hourly rate increase, Plaintiff points to the fact that the
EAJA rate of $125/hour for civil cases was set in March 1996 when the consumer price index
(CPI-U)17 was 155.7 across all U.S. cities on average. Plaintiff then reasons that, because the CPI-
U index in September 2022 was 278.30 for the U.S. Southwest city average, the $125/hour EAJA
rate should be multiplied by 1.78 (278.30/155.70), which results in an adjusted hourly EAJA
attorney fee rate of $222.50. There are a couple of problems with this analysis.
First, Plaintiff’s proposed analysis does not seem to compare apples-to-apples. While
Plaintiff looks at the CPI-U across all U.S. cities on average when looking at March 1996 when
12 See Gann v. Colvin, No. 14-189, 2017 WL 385038, at *2 (M.D. La. Jan 1, 2017) (approving an increase in the
hourly rate to $175.00 per hour for work performed from 2014 forward) (citing Baker v. Bowen, 839 F.2d 1075, 1084
(5th Cir. 1988) (emphasis in Baker).
13 Id.
14 Id.
15 R. Doc. 19-1, p. 4-5.
16 R. Doc. 20.
17 Per the U.S. Bureau of Labor Statistics, the CPI-U is “a measure of the average change over time in the prices paid
by urban consumers for a market basket of consumer goods and services.” U.S. Bureau of Labor Statistics, Consumer
Price Index, https://www.bls.gov/cpi.
the EAJA rate was set in March 1996, he only looks at the U.S. Southwest city average when
looking at the CPI-U index for September 2022. Additionally, in Perales v. Casillas, the Fifth
Circuit noted that cost of living adjustments to EAJA fees must be made to reflect the appropriate
year in which the services were rendered.18 Here, the services were rendered in May and August
of 2024, not in September 2022, the time period for which Plaintiff provides information.19
Historically, this Court compared the South’s CPI-U rate for March 1996 (the month and
year in which the $125 EAJA rate became effective) and the South’s CPI-U rate for the year in
which the work was performed (here, 2024). In March 1996, the CPI-U rate for the average
Southern city was 152.4, while the CPI-U rate for all of 2024 was calculated at 305.187.20 That is
a 100.2% increase in the CPI-U rate for Southern consumers. However, from 1996 to 2024, this
Court also increased the award for attorney’s fees under the EAJA. Specifically, in 2017, in its
decision in Gann v. Colvin, this Court raised the EAJA rate from $150.00 to $175.00.21 This raise
in the EAJA rate was considered by comparing the CPI-U rates from March 1996 (i.e., 152.4) to
the CPI-U applicable to the years that the work was performed in the Gann case, which was
230.552 in 2014 and 232.692 in 2016.22 The Court considered both CPI-U rates, and found that
the percentage increases in the CPI-U (51-52% in 2014 and 54.9% in 2016) were significant
enough to justify a raise to the EAJA rate. In contrast, there has only been a 31% increase in the
CPI-U since the last EAJA attorney fee increase in 2016 (compare CPI-U of 232.692 with the
18 950 F.2d 1066, 1076 (5th Cir. 1992).
19 R. Doc 19-1, p. 3.
20 https://data.bls.gov/pdq/SurveyOutputServlet (last visited 4/25/2025).
21 Gann, 2017 WL 385038, at *2.
22 Id.
2024 rate of 305.187. A 31% increase in the cost of living as reflected in the CPI-U is not
significant enough increase to justify another increase in the EAJA attorney fee rate at this time.23
While Plaintiff did cite to some other cases where attorney’s fees under the EAJA were
awarded at higher rates in other districts, those decisions are merely persuasive and have no
binding effect on this Court. Outside of noting recent increases in billing practices for attorneys
and law firms in New Orleans and pointing out counsel’s experience practicing Social Security
law, Plaintiff provides nothing else to support an increase in EAJA attorney’s fees.24 Furthermore,
in his Response to the Motion, the Commissioner cites several cases from this Court awarding
EAJA fees at $175 per hour (or less) in social security appeals. Plaintiff does not cite to any case
from this Court awarding a higher EAJA fee in a case involving a social security appeal.25
Plaintiff has not established entitlement to an increased EAJA fee at an hourly rate of
$220.00. Accordingly, the Court grants Plaintiff’s request for attorney fees in part, awarding
Plaintiff fees based on 10 hours, at the hourly rate of $175.00, for a total award of $1,750.00
pursuant to the EAJA.
23 As noted in Gann, “The court does not have to expressly track the cost-of-living index for this area, however, and
so the court finds that an hourly rate of $175.00 satisfies the goals of the EAJA—increasing rates only to the extent
necessary to ensure an adequate source of representation and not exceeding the percentage by which the market rate
attorney’s fees have increased since the statute was enacted in 1981.” (citing Hamblen v. Colvin, 14 F.Supp.3d 801,
805 (N.D. Tex. April 17, 2014) (“The award need not track the cost-of-living index for that geographical area, but that
index is a significant indicator. The resulting figure is only a maximum rate, however, not a floor, and ‘a district court,
in its discretion, may determine that a fee below the established ceiling is a reasonable attorney's fee award based on
the facts of a particular case.’”) (Citations omitted).).
24 R. Doc 19-1, p. 5.
25 R. Doc. 20, pp. 1-2. The Fifth Circuit has noted the importance of maintaining uniformity within districts when
calculating fee adjustments under the EAJA. See e.g., Hall v. Shalala, 50 F.3d 367, 368 (5th Cir. 1995) (stating that
“the cost-of-living” factor should be applied by the district courts and “invit[ing] the district judges of the Eastern
District of Louisiana to address any lack of uniformity with a view toward developing the required uniformity.”).
B. The Award of Fees Shall be Paid Directly to Plaintiff
The United States Supreme Court has held that an EAJA fee award is payable to the
prevailing litigant, rather than the litigant’s attorney.26 Accordingly, the award of attorney fees in
this case is to be made payable directly to Plaintiff John Frank and is to be mailed to Plaintiff’s
counsel.
III. CONCLUSION
For the reasons set forth above, IT IS ORDERED that Motion for Attorney’s Fees,27 filed
by Plaintiff John Frank, is GRANTED IN PART. Plaintiff will be awarded attorney’s fees of
$1,750.00, based on 10 hours, at the rate of $175 per hour, under the Equal Access to Justice Act,
28 U.S.C. § 2412.
The Commissioner is ORDERED to remit to Plaintiff’s counsel a check made payable to
“John Frank” for attorney fees in the amount of $1,750.00, pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d)(1)(A). The check may be mailed to Plaintiff’s counsel. Full or partial
remittance of the awarded fee is contingent upon a determination by the Commissioner that
Plaintiff does not owe any qualifying, pre-existing debt(s) to the United States of America. The
Commissioner will reduce the awarded attorney fees in this Order to the extent necessary to satisfy
such debt(s) and forward the remainder of the award, as set forth in this Ruling and Order.
Signed in Baton Rouge, Louisiana, April 25, 2025.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
26 Astrue v. Ratliff, 560 U.S. 586 (2010).
27 R. Doc. 19.