JOHN POWERS, United States Magistrate Judge
Heretofore, the Court remanded this matter to the Commissioner for further administrative consideration pursuant to sentence four of 42 U.S.C. § 405(g) (Court File No. 18).
This matter is now before the Court upon:
(1) The plaintiff's motion for an award of attorneys' fees under the Equal Access to Justice Act (EAJA) (Court File 19), with the memorandum in support thereof (Court File No. 20).
(2) The Commissioner of Social Security's response (Court File No. 25).
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure for a report and recommendation regarding the disposition of the plaintiff's motion for an award of attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).
Requirements for Entitlement to EAJA Attorney Fees
In order to be entitled to EAJA attorney fees four conditions must be met:
(1) The plaintiff must be a prevailing party;
(2) The application for attorney's fees, including an itemized justification for the amount requested, must be filed within 30 days of the final judgment in the action;
(3) No special circumstances warranting denial of fees may exist; and
(4) The government's position must be without substantial justification.
Substantial Justification
Under the Equal Access to Justice Act a court cannot award attorney fees if the position of the government was "substantially justified."
In Pierce v. Underwood, 487 U.S. 552, 565, 101 L.Ed.2d 490, 504, 108 S.Ct. 2541, 2550 (1988) the court interpreted "substantially justified" as follows:
We are of the view, therefore, that as between the two commonly used connotations of the word" substantially," the one most naturally conveyed by the phrase before us here is not "justified to a high degree," but rather "justified in substance or in the main" — that is, justified to a degree that could satisfy a reasonable person. That 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. See . . . Trident Marine Construction, Inc. v. District Engineer,
766 F.2d 974, 980 (6th Cir. 1985); . . . to be "substantially justified" means, of course, more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for government litigation of which a reasonable person would approve.
See generally Sullivan v. Hudson, 490 U.S. 877, 104 L.Ed.2d 941, 109 S.Ct. 2248 (1989); Perket v. Secretary of Health and Human Services, 905 F.2d 129, 132 (6th Cir. 1990) and Jankovich v. Bowen, 868 F.2d 867, 869 (6th Cir. 1989).
The Commissioner has the burden of proving his position was substantially justified. Welter v. Sullivan, 941 F.2d 674 (8th Cir. 1991). The Commissioner has in his response to the plaintiff's motion stated he will not assert his position was substantially justified (Court File No. 25). The other criteria for entitlement to EAJA attorney's fees have been met. The Commissioner opposes $72.00 an hour as the hourly rate sought for the plaintiff's paralegal hours but does not oppose the $11.24 hourly increase from $125.00 to $136.24 sought as the plaintiff's attorney's hourly EAJA fee rate.
Plaintiff's Statement
In summary, the following are sought by the plaintiff under the Equal Access To Justice Act (EAJA):
Attorney Time 15.90 hours @136.24 per hour $2,166.22 Paralegal Time 8.50 hours @72.00 per hour 612.00 Service of Process 150.00 ________ $2,928.22
Paralegal's Hourly Rate Under the EAJA
While the Commissioner's response to the plaintiff's motion for EAJA attorney fees is captioned "Defendant's Opposition To Plaintiff's Motion For Attorney Fees Pursuant to 28 U.S.C. § 2412(d), the only aspect of the plaintiff's EAJA motion and statement the Commissioner opposes is the $72.00 hourly rate sought for the plaintiff's paralegal time.
In the plaintiff's Memorandum in Support of Motion for EAJA Fees the plaintiff states:
In Missouri v. Jenkins,
491 U.S. 274,
109 S.Ct. 2463,
105 L.Ed.2d 229 (1989), the Supreme Court interpreted the fee shifting provision of
42 U.S.C. § 1988 to allow compensation for the hourly work of paralegals or law students. Id.
491 U.S. at 286-289, 109 S.Ct. 2470-2472. The cases interpreting the fee shifting provisions of § 1988 have been previously cited by both Plaintiff's and Defendant's counsel in this court in earlier cases, because it is very similar to the case law on EAJA fees, except that § 1988 fees are not subject to the statutory hourly cap. The reasonably hourly rate in Missouri v. Jenkins for attorney time was compensated at $200 per hour, Id.
491 U.S. at 276. The Supreme Court approved an hourly rate of $35 per hour for law clerks, $40 for paralegals, and $50 for recent law school graduates. Id.,
491 U.S. at 289. The work performed in the case in pre-trial and trial litigation was by 1984; the cited rates be considered as evidence of the reasonable hourly rates at that time. Id.,
491 U.S. at 279.
Missouri v. Jenkins, is also instructive in that i[t] shows that an acceptable reasonable hourly rate for paralegals is four-fifths of the hourly rate of recent law school graduates. This Court has recently held that the market rate for a law school graduate awaiting admission to the bar was $90 per hour in 1999. Conway v. Apfel, 3:97-cv-56 (Jordan/Murrian, E.D. Tenn. Aug. 19, 1999) . . . Four-fifths of $90 is $72 per hour, which should be the current reasonable hourly rate for paralegals.
(Court File No. 20, pp. 9-10).
It is noted in Missouri v. Jenkins the Court approved a fee for the experienced attorney at an hourly rate of $200.00. Id., 491 U.S. at 277. Thus, the hourly fee which the court in Missouri approved for paralegals, $40.00, was one-fifth of the $200 hourly fee rate which the court approved for the experienced attorney. The undersigned has previously recommended the approval of EAJA fee petitions in which experienced attorneys in the same law firm as that representing the plaintiff have been awarded compensation at an hourly rate of $125.00. One-fifth of $125.00 is $25.00. Further, assuming arguendo, that the court would approve the plaintiff's current fee request based upon $136.24 per hour for experienced attorneys, one-fifth of $136.24 is $27.25. Thus, the current hourly rate of $40.00 approved by this court for paralegals is well in excess of one-fifth of the hourly rate requested by the plaintiff for experienced attorneys. In view of these circumstances, an increase in the $40.00 hourly rate for paralegals has not been shown to be justified.
Attorneys Hourly Rate Under the EAJA
The plaintiff requests the attorney's hourly rate be increased from $125.00 to $136.24. In so doing the plaintiff asserts:
Pursuant to
28 U.S.C. § 2412(d)(2)(A) "fees and other expenses includes . . . reasonable attorney fees." The statute explains that the reasonable fees
"shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . (ii) 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."
As the language of the statute makes clear, the $125.00 per hour maximum fee can be adjusted upward for an increase in the cost of living. The $125.00 per hour maximum fee went into effect on March 29, 1996, as part of the Contract with America Advancement Act of 1996, P.L. 104-121, §§ 231-233, over four years ago.
In March 1996, the Consumer Price Index (CPI) stood at 155.7. In February 2000, the latest statistics available to the Plaintiff, the CPI stood at 169.7, a substantial increase . . . Adjusted for the increased cost of living, the maximum $125.00 per hour fee should now be $136.24. The Plaintiff requests this rate for time spent on this case.
(Court File No. 20, p. 6-7).
The Consumer Price Index is a nationally weighted average for all urban areas in the United States. The plaintiff cites the Consumer Price Index (CPI) in February 2000 as being 169.7, and in so doing, relies upon the U.S. city average as set forth in the May 2000 Social Security Forum document for years 1970 through February 2000. That document is attached to the plaintiff's brief (Court File No. 20).
Attached is a two-page document entitled Consumer Price Index fir All Urban Consumers obtained from the Internet, stats. bls.gov Web site, on November 20, 2000. "bls" is, of course, Bureau of Labor Statistics. Attention is invited to the highlighted portion of the first page under the topic "South urban." Specifically, in October 2000 the CPI-U for Southern metropolitan areas with a population of more than 1,500,000 was 168.6. During that same period or time the CPI-U for Southern metropolitan areas with a population between 50,000 and 1, 500,000, the applicable size in the Consumer Price Index for Knoxville and Chattanooga, Tennessee, was 108.1. This reflects the lower cost of living and/or doing business in the Eastern District of Tennessee when compared with larger metropolitan areas in the South.
Attention is invited to Footnote 2 and the attached document entitled Consumer Price Indexes which list includes the following: July Aug Sep Oct 2000 2000 2000 2000 South urban. . . . . . . . . . . . . M R.168.0 R168.0 168.5 168.5 Size A — More than 1,500,000 . M R.167.9 R167.9 168.4 168.6 Size B/C- 50,000 to 1,500.000 . . . M R.107.8 R107.8 108.1 108.1 Size D — Nonmetropolitan (less Than 50,000). . . . . . . . . . . . M R167.7 R167.8 168.2 167.6 It is well-recognized it is far more expensive to live and/or operate a business or law firm in major metropolitan areas such as New York, Philadelphia, Atlanta, Chicago and Los Angeles than in the Eastern District of Tennessee, including the metropolitan areas of Knoxville and Chattanooga. Notwithstanding the Commissioner's lack of objection to the plaintiff's requested increase in the attorney's hourly fee rate from $125.00 to $136.24, it has not been proven or established an increase in the attorney's fee hourly rate based upon the Consumer Price Index is warranted or justified.
Conclusion
Having carefully considered this matter, it is concluded and accordingly RECOMMENDED:
Any objections to this Report and Recommendation must be served and filed within ten (10) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140, 88 L.Ed.2d 435, 106 S.Ct. 466 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive and general. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).
(1) The plaintiff's motion for EAJA attorney fees (Court File No. 19) be GRANTED.
(2) The plaintiff be awarded fees and expenses under the EAJA as follows:
Attorney Time 15. 90 hours @125.00 per hour $1,987.50 Paralegal Time 8.50 hours @ 40.00 per hour 340.00 Service of Process 150.00 ________ $2,477.50