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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION (at London) THOMAS BLAKLEY, Plaintiff, V. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. *** *** ) ) ) ) ) ) ) ) ) ) ***

Civil Action No. 6: 07-436-DCR

MEMORANDUM OPINION AND ORDER

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Julie Atkins, counsel for Plaintiff Thomas Blakley, has filed a motion for attorney fees under the Equal Access to Justice Act (EAJA). [Record No. 16] Atkins seeks payment in the total amount of $11,867.08 for 24.9 hours of work performed before this Court and 43.1 hours for representation of Blakley before the United States Court of Appeals for the Sixth Circuit. Defendant Michael Astrue, Commissioner of Social Security, does not contest the legitimacy of the work performed by Atkins on behalf of Blakley. However, he does object to the hourly rate upon which Atkins' claim for compensation is based. More specifically, the Commissioner contends that an hourly rate exceeding $125 is excessive under the facts presented. [Record No. 17] Having reviewed the materials and authorities submitted by the parties, the Court agrees with the position taken by the Commissioner. Accordingly, the fee requested by Atkins will be reduced to $8,500.00.1

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In addition to attorney fees, the Court will also award filing fees in the sum of $805.00.

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I. Initially, Blakley's counsel requests fees of $11,867.08, based on a rate of $125.00 per hour plus increasing cost-of-living adjustments (COLAs) for work performed from 2007 through 2009.2 Using an original base rate in 1996 of $125.00 per hour, Atkins calculates the adjusted hourly rates for 2007, 2008, and 2009 as $170.06, $173.98, and $184.07, respectively. Alternatively, Atkins asks for an award of $10,655.00, based on an hourly rate of $125.00 for work performed before this Court and $175.00 per hour for work performed before the Sixth Circuit. In support of the fee request, Atkins has submitted an affidavit outlining her experience in social security litigation. The affidavit further provides that Atkins' hourly rate for such representation is $125.00 per hour, plus COLAs, and that she routinely receives $125.00 per hour as fees in the Eastern District of Kentucky and higher fees in other jurisdictions. Atkins cites Bryant v. Commissioner of Social Security, 578 F.3d 443, 450 (6th Cir. 2009) (district court did not abuse discretion in finding evidence of the consumer price index insufficient to justify fees in excess of statutory rate), and Begley v. Secretary of Health and Human Services, 966 F.2d 196, 200 (6th Cir. 1992) (recognizing that district court has discretion to award fees in excess of statutory rate), in support of her initial claim for fees exceeding $125.00 per hour. She also cites Hall v. Commissioner of Social Security, U.S. Dist. Ct., E.D. Ky., Southern Div. at

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The COLAs utilized by the Plaintiff's counsel are published at http://www.socialsecurity.gov/cola/facts, and reflect the annual cost of living adjustment upon which the Commissioner bases adjustments to the benefits rates.

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Pikeville, No. 7: 03-84-DLB (Memo Op., Jan. 9, 2006), in support of her alternative fee request seeking a higher rate for work performed before the Sixth Circuit. In opposing the hourly rate requested by Atkins, the Commissioner notes that the fee request wholly fails to provide proof that the prevailing market rate in the Eastern District of Kentucky would justify a rate in excess of $125.00 for work performed before this Court or on appeal. The Commissioner further contends that Atkins has failed to meet her burden of demonstrating that her requested fee is in line with prevailing market rates for comparable legal services in the same community and that there is no justification for awarding a higher hourly rate for appellate work. II. The EAJA requires the payment of fees and expenses to the prevailing party in an action against the United States, unless the position of the United States was substantially justified. 28 U.S.C.

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