United States District Court, W.D. New York
DECISION AND ORDER
JEREMIAH J. McCARTHY, UNITED STATES MAGISTRATE JUDGE
commenced this action on March 26, 2018, arguing that the
Commissioner's denial of his claims for Social Security
Disability Benefits were not supported by substantial
evidence and was contrary to law and regulation. Complaint
On September 24, 2019, I granted plaintiff's motion for
judgment on the pleadings and remanded the case to the
Commissioner for further proceedings consistent with my
Decision and Order .
the entry of a Judgment , plaintiff filed a motion for an
award of attorney's fees in the amount of $6, 793.52 and
filing fees in the amount of $400.00 under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. §2412
. The parties then filed a Stipulation  agreeing that
plaintiff should receive attorney's fees in the amount of
$6, 793.52, in full satisfaction of plaintiff's claim for
fees, expenses, and costs.
U.S.C. §2412(b) authorizes an award of “reasonable
fees and expenses of attorneys . . . to the prevailing party
in any civil action brought by or against the United States
or any agency or any official of the United States acting in
his or her official capacity.” By obtaining a remand
under the circumstances present in this case, plaintiff is
the “prevailing party” for purposes of the EAJA.
Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).
fact that the parties have stipulated to an amount does not
relieve this court of the obligation to determine whether
that amount is reasonable. See Pribek v. Secretary,
Department of Health & Human Services, 717 F.Supp.
73, 75 (W.D.N.Y. 1989) (“the determination of a
reasonable fee under the EAJA is for the court rather than
the parties by way of stipulation”); Lockwood v.
Colvin, 2016 WL 6902341, *1 (D. Conn. 2016)
(“[a]lthough the parties have reached an agreement as
to the appropriate award of fees in this matter, the Court is
obligated to review the fee application and determine whether
the proposed fee award is reasonable”).
award is appropriate “unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust”. 28
U.S.C. §2412(d)(1)(A). “The burden is on the
Government to show that its position was substantially
justified.” Eames v. Bowen, 1');">864 F.2d 251, 252
(2d Cir. 1988). The government has not attempted to satisfy
that burden, nor do I find any “special
circumstances” which would make an award unjust.
U.S.C. §2412(d)(2)(A) states that “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”. The hourly rate may be adjusted to account for
inflation as determined by the Consumer Price Index
(“CPI”). See Isaacs v. Astrue, 2009 WL
1748706, *3 (W.D.N.Y. 2009) (“[t]he current statutory
cap of $125 per hour took effect in 1996 . . . and the Court
may revise it upward to reflect inflation as determined by
the [CPI]”). The stipulation provides plaintiff's
counsel fees at an effective hourly rate of
$206.49. This adjustment is appropriate. Moreover,
I find the number of hours devoted to this case, as detailed
in counsel's Declaration ([15-2], ¶3) to be
reasonable. Therefore, I find no reason to second guess the
fee amount to which the parties have stipulated.
his Fee Agreement with the Law Offices of Kenneth R. Hiller,
PLLC [15-3], plaintiff assigned his right to any fee award to
his counsel. Pursuant to the Stipulation, the fees “may
be paid to Plaintiff's counsel if Plaintiff agrees to
assign the fees to counsel, and provided that Plaintiff owes
no debt to the Federal Government that is subject to offset
under the U.S. Treasury Offset Program” .
“EAJA fees are payable to litigants and are thus
subject to offset where a litigant has outstanding federal
debts.” Astrue v. Ratliff, 560 U.S. 586, 594
(2010). While fee awards under the EAJA are payable to the
plaintiff, the plaintiff has the right to assign the EAJA fee
award to his/her lawyer, and where the Commissioner does not
oppose the assignment, it can be honored under the
Anti-Assignment Act. See Kerr for Kerr v. Commissioner of
Social Security, 874 F.3d 926, 937 (6th Cir. 2017)
(“[u]nless the government waives application of the
[Anti-Assignment Act] in EAJA cases, fee awards must be paid
to the prevailing party, not to the party's
Stipulation  is approved as follows: the court awards
plaintiff attorney's fees in the amount of $6, 793.52
payable to plaintiff's counsel, unless the government
declines to waive application of the Anti-Assignment Act, in
which case the award shall be payable to plaintiff, but
delivered to plaintiff's counsel.