UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MONIQUE C. DAVIS, Plaintiff, v. KILOLO KIJAKAZI, in her official capacity Civil Action No. 20-2282 (CKK) as Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OPINION AND ORDER (June 28, 2023)

On August 24, 2022, the Court remanded this Social Security matter for further

proceedings. Plaintiff Monique Cecilia Davis (“Plaintiff” or “Davis”) now seeks an award of

attorney’s fees in the amount of $23,271.67 and paralegal fees in the amount of $360 pursuant to

the Equal Access to Justice Act (“EAJA”),

. The Court concludes that Plaintiff

is entitled to costs, but not in the amount requested. Accordingly, and upon review of the

briefing, the relevant legal authority, and the entire record, the Court GRANTS IN PART AND

DENIES IN PART Plaintiff’s [26] Petition for Attorney’s Fees under the Equal Access to Justice

Act (“EAJA”).

The EAJA permits parties, including Social Security benefit claimants, who prevail in

actions against the government to recover attorney’s fees and other expenses. See Gisbrecht v.

Barnhart,

(2002). Under EAJA, a court may award a plaintiff reasonable

attorney’s fees and expenses if: (1) the plaintiff is the prevailing party; (2) the plaintiff has

incurred fees or expenses; (3) the position of the United States in the action was not substantially

justified; and (4) no special circumstances make an award of fees unjust.

(b),

d(1)(A). Awards of attorney’s fees pursuant to EAJA are statutorily capped at $125 an hour

1 “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.”

(d)(2)(A).

Here, it is undisputed that Plaintiff is the “prevailing party” and is entitled to costs.

Defendant contests only the amount. Defendant agrees that the fees awarded should be inflation-

adjusted, but opposes Plaintiff’s requests for an even further upward departure to reflect her

experience in litigating Social Security matters as a “special factor.” The Court concludes that

Plaintiff has not demonstrated a “special factor,” but the Court will award fees that are inflation-

adjusted.

A. Special Factor

To demonstrate a “special factor,” the prevailing party faces a high bar. The prevailing

party must show that their “attorneys hav[e] some distinctive knowledge or specialized skill

needful for the litigation in question—as opposed to an extraordinary level of the general

lawyerly knowledge and ability useful in all litigation.” Pierce v. Underwood,

(1988). In Pierce, the Supreme Court made clear that “the novelty and difficulty of issues,” “the

undesirability of the case,” “the work and ability of counsel,” and “the results obtained” all failed

to qualify as special factors that would necessitate an award of attorney’s fees above the statutory

cap.

(internal citation and quotation marks omitted).

The vast majority of courts have held that a counsel’s extensive experience practicing

Social Security benefits law does not constitute a special factor warranting an increase in

attorney’s fees above the statutory cap. And for good reason––“expertise in social security law

would be of the type that is possessed or easily acquired by reasonably competent attorneys

licensed to practice law,” and thus falls below the threshold of “distinctive knowledge or

2 specialized skill” required for an increase in attorney’s fees above the statutory cap. Hyatt v.

Barnhart,

(4th Cir. 2002); accord Mitchell-Jenkins v. Colvin,

, at *3 (D.D.C. Mar. 31, 2016) (Robinson, M.J.). Put differently, “[a]lthough Social

Security benefits law involves a complex statutory and regulatory framework, the field is not

beyond the grasp of a competent practicing attorney[.]” Chynoweth v. Sullivan,

(10th Cir. 1990); see also Raines v. Shalala,

(7th Cir. 1995) (“[T]he area

of social security law cannot in itself be considered such a specialized area of law practice as to

warrant, as a general rule, payment in excess of the [statutory] rate.”).

In the face of this overwhelming precedent, Plaintiff’s counsel declaims that she has

garnered twenty years of experience as an administrative law judge for Social Security and ten

years of experience litigating Social Security matters in private practice. Yet the relevant inquiry

is not the experience of counsel in an area of law, but whether that area of law is so niche and

complex that it qualifies as the exception to the EAJA’s default rate. Plaintiff’s counsel fails to

make such a showing here.

B. Award Calculation

Unlike a request for a “special factor” increase, a prevailing party faces a much lower bar for

a cost-of-living adjustment. Attorney’s fees above the statutory cap are frequently awarded to

compensate for increases in the cost of living, with courts in this jurisdiction using the regional

Consumer Price Index (“CPI”) to make such adjustments. See, e.g., Cooper v. R.R. Retirement

Bd.,

(D.C. Cir. 1994); Porter v. Astrue,

(D.D.C. 2013)

(JEB); Mitchell-Jenkins,

at *3. Courts of this jurisdiction generally use the

yearly, regional CPI computed by the United States Bureau of Labor Statistics, because “it most

accurately reflects the increase in the cost of living experienced by the attorneys in [a] particular

3 region.” Porter, 999 F. Supp. 2d. at 39 (collecting cases). If a yearly CPI is unavailable for legal

work done during a handful of months in the applicable year, courts then “average the months for

which a CPI was available” to calculate the adjustment. See Mitchell-Jenkins,

at *2. The adjusted hourly rate itself is calculated by “multiplying the regional CPI by

the amount stated in the statutory cap, and then dividing the remainder by the applicable regional

CPI at the time the statutory cap was increased in 1996.” Id.;� see also Haselwander v. McHugh,

(D.C. Cir. 2015) (using CPI-U to calculate adjustment to statutory rate under

EAJA).

All of the work that Plaintiff’s counsel is seeking reimbursement for occurred during

2021. See Plaintiff’s Petition for Attorney’s Fees under the Equal Access to Justice Act

(“EAJA”), ECF No. 26, Ex. A. As such, the Court will use the regional CPI-U for 2021, which

was $277.728. 1 The regional CPI at the time the statutory cap was increased in 1996 was $100.

See Porter,

. Thus, the adjusted billable rate is $125 x $277.728 / $100 =

$347.16. Therefore, the Court will apply an adjusted billable rate of $347.16.

The Court must then multiply the billable rate by the number of hours expended.

Plaintiff requests a total of 46.66 hours. See Plaintiff’s Petition for Attorney’s Fees under the

Equal Access to Justice Act (“EAJA”), ECF No. 26, at 1. 2 Multiplying 46.66 hours by the

billable rate of $347.16 equals $16,198.47. Plaintiff also requests an award of $360 for 2 hours

1 See Summary of annual and semi-annual indexes, U.S. BUREAU OF LABOR STATISTICS, https://www.bls.gov/regions/mid- atlantic/data/consumerpriceindexannualandsemiannual_table.htm (last visited Jun. 21, 2023). 2 This request reflects a voluntary, twenty-five percent reduction in hours expended. In reply, Plaintiff’s counsel requested, for the first time, to be compensated for 62.22 hours of work. The amount requested is itself a request for relief, and, pursuant to Rule 7(b), “[t]he Court does not consider new arguments and requests for relief made on reply[.]” L.A. Taxi Coop., Inc. v. Uber Techs., Inc.,

(N.D. Cal. Aug. 27, 2015).

4 of paralegal work, calculated using the 2021 hourly fee for paralegals and law clerks from the

USAO Matrix. See Plaintiff’s Petition for Attorney’s Fees under the Equal Access to Justice Act

(“EAJA”), ECF No. 26, at 1. In Defendant’s Opposition, Defendant notes that Plaintiff never

explained why an increase above the statutory cap for paralegal work was justified and as such,

argues that Plaintiff should be compensated at the statutory cap of $125 per hour for paralegal

work. Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Attorney Fees under the

Equal Access to Justice Act, ECF No. 28, at 5. Plaintiff having failed to respond to this argument

in reply, it is conceded. See Phrasavang v. Deutsche Bank,

(D.D.C.

2009) (RMU) (“Because the plaintiff fails to respond to any of these arguments in his

oppositions, the court treats them as conceded.” (internal citations omitted)). Therefore, for

paralegal fees, the Court awards the sum of $250.00 ($125 per hour for 2 hours). In total, the

Court awards $16,448.47 in fees and costs.

* * *

Accordingly, and for the foregoing reasons, it is hereby

ORDERED that Plaintiff’s [26] Petition for Attorney’s Fees under the Equal Access to

Justice Act (“EAJA”) is GRANTED IN PART AND DENIED IN PART. It is further

ORDERED that Plaintiff is AWARDED in fees and costs, to be made payable to:

Monique Davis, 5185 MacArthur Blvd., Ste. 1, Washington, DC 20016, in the amount of Sixteen

Thousand, Four Hundred and Forty-Eight dollars and 47/00 cents ($16,448.47). It is further

ORDERED, that payment shall be effected on or before August 11, 2023.

SO ORDERED.

Dated: June 28, 2023 _____/s/_____________________ COLLEEN KOLLAR-KOTELLY United States District Judge

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