                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0140n.06

                                          No. 15-2002                                 FILED
                                                                                 Mar 03, 2017
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

ANGELA CAVINESS,                                         )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
COMMISSIONER OF SOCIAL SECURITY,                         )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF MICHIGAN
       Defendant-Appellee.                               )
                                                         )
                                                         )



BEFORE:        BATCHELDER, ROGERS, and WHITE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. The issue before us in this case is whether

the district court abused its discretion when it declined to award an attorney fee rate that

exceeded the statutory maximum established by the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412. For the following reasons, we affirm the district court’s ruling that the EAJA

does not provide an automatic cost-of-living adjustment, but we vacate the district court’s award

of attorney fees at the rate of $125 per hour and remand for further proceedings.

                                                I.

       Plaintiff Angela Leigh Caviness initiated the underlying action in this appeal against

Defendant Carolyn W. Colvin, the acting Commissioner of Social Security, seeking to have the

district court review the Social Security Administration’s denial of her disability benefits.

Defendant filed a stipulation, asking the district court to remand the case to the Administration
No. 15-2002, Caviness v. Comm’r of Social Security


for further hearings and enter judgment in favor of Caviness. The district court then filed an

order remanding the case pursuant to the stipulation and entered judgment for Caviness.

           Caviness then petitioned the court on behalf of her attorney, Howard D. Olinsky, to

award attorney fees, pursuant to the EAJA, which permits “a judgment for costs . . . to the

prevailing party in any civil action brought by or against . . . any official of the United States

acting in his or her official capacity.” 28 U.S.C. § 2412(a)(1). The EAJA sets a maximum

attorney fee rate of $125 per hour, but gives district courts the authority to award fees at a higher

rate if “an increase in the cost of living . . . justifies a higher fee.” Id. § 2412(d)(2)(A)(ii).

           Relying on the cost-of-living provision, Caviness requested a rate of $185.01 per hour for

39 hours of work, plus an award of costs of $15.39 for service of her summons and complaint,

for a total request of $7,230.78. Caviness arrived at the $185.01 per hour rate by applying the

rate of inflation for Midwest urban areas since 19961 according to the Consumer Price Index

(“CPI”) published by the Bureau of Labor Statistics. Caviness supported her motion for attorney

fees with an affidavit by Olinsky regarding his qualifications for attorney fees under the EAJA

and an itemization of Olinsky’s billable hours spent on the case. The government opposed

Caviness’s request, arguing that the CPI alone could not justify a rate above $125 per hour

because “[i]nflation affects different markets, and different costs in the same market, in different

ways.” In response, Caviness cited a State Bar of Michigan report that includes a breakdown of

attorney billing rates by region, experience level, and practice area, and argued that the report

shows that a rate of $185.01 is reasonable given Olinksy’s experience and the rates charged by

similar practitioners in Michigan.

           As required under the EAJA, the district court found that Caviness fulfilled all of the

law’s requirements to be awarded attorney fees: her net worth did not exceed $2,000,000, the
1
    The EAJA statutory cap has not been amended since Congress enacted the law in 1996.

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No. 15-2002, Caviness v. Comm’r of Social Security


United States’ position in the underlying litigation was not substantially justified, and there was a

final judgment.      However, the district court found that an attorney fee rate exceeding the

statutory maximum was not justified in this case. The district court awarded Plaintiff $4,875.00,

for 39 hours of work at $125 per hour, plus $15.39 for service of the summons and complaint,

for a total of $4,890.39 in fees and costs. This timely appeal followed.

                                                     II.

        We review for an abuse of discretion a district court’s decision on an application under

the EAJA, including the district court’s determination of whether a request for fees is reasonable.

Clark v. Comm’r of Soc. Sec., __ F.3d __, No. 16-5393, 2016 WL 6958640, at *3 (6th Cir. Nov.

29, 2016) (citing Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009)). “A district

court abuses its discretion when it relies on clearly erroneous findings of fact, or when it

improperly applies the law or uses an erroneous legal standard.” Bryant, 578 F.3d at 445

(quoting Déjà Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 274 F.3d 377,

400 (6th Cir. 2001)). A district court also abuses its discretion when it “fails to explain its

reasoning adequately or to consider the competing arguments of the parties.” Minor v. Comm’r

of Soc. Sec., 826 F.3d 878, 883 (6th Cir. 2016) (quoting Garner v. Cuyahoga Cty. Juvenile

Court, 554 F.3d 624, 643 (6th Cir. 2009)). Under the abuse-of-discretion standard, a reviewing

court will reverse if it is “firmly convinced that a mistake has been made,” Glenn v. Comm’r of

Soc. Sec., 763 F.3d 494, 497 (6th Cir. 2014) (citations omitted), or when the district court fails to

provide an explanation for its decision. Minor, 826 F.3d at 883 (quoting U.S. Structures, Inc. v.

J.P. Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997)).

        The EAJA caps the hourly rate for attorney fees at $125 per hour “unless the court

determines that an increase in the cost of living or a special factor, such as the limited availability



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No. 15-2002, Caviness v. Comm’r of Social Security


of qualified attorneys for the proceedings involved, justifies a higher fee.”                      28 U.S.C.

§ 2412(d)(2)(A). The rate of $125 per hour is “a ceiling and not a floor.” Chipman v. Sec’y of

Health and Human Servs., 781 F.2d 545, 547 (6th Cir. 1986), and any decision to award an

attorney fee rate above the $125 cap is within “the sound discretion of the district court,” Begley

v. Sec’y of Health and Human Servs., 966 F.2d 196, 199 (6th Cir. 1992). When requesting an

increase in the hourly fee rate above the statutory cap, a plaintiff “bear[s] the burden of

producing appropriate evidence to support the requested increase.” Minor, 826 F.3d at 881

(quoting Bryant, 578 F.3d at 450).

        Citing out-of-circuit cases, Caviness argues that Congress intended cost-of-living

increases in the hourly rate to be automatic, and that all a plaintiff needs to submit is evidence of

the CPI. We have previously held, however, that reference to the CPI alone is insufficient to

sustain a plaintiff’s burden; a plaintiff must also submit evidence that the requested rate is “in

line with those prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.” Bryant, 578 F.3d at 450 (quoting Blum v. Stenson,

465 U.S. 886, 895 n.11 (1984)); see also Gay v. Comm’r of Soc. Sec., No. 13-2575, slip op. at 4-

5 (6th Cir. Aug. 7, 2014) (explaining that evidence of rates should be localized to the district in

which the attorney fee is sought). Further, in Clark—a case decided while this appeal was

pending, and in which Olinsky’s firm served as appellant’s counsel—we considered and rejected

the argument Caviness now raises. 2016 WL 7877326 at *3-*4. The district court therefore

correctly determined that Caviness was not automatically entitled to an attorney fee rate of

$185.01 per hour based on CPI alone.2




2
  Because this argument fails on the merits, we need not address the government’s assertion that Caviness waived
the argument by not developing it fully below.

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No. 15-2002, Caviness v. Comm’r of Social Security


        But the district court failed to offer a meaningful explanation for its decision to deny

Caviness’s request for an attorney fee rate above the statutory cap of $125 per hour. The district

court acknowledged that the state bar report provided “data revealing the hourly fees of

Michigan attorneys in 2010 with comparable years of experience to Plaintiff’s attorney,” but did

not explain why Caviness did not carry her burden in requesting an hourly rate higher than $125.

In rejecting a higher hourly rate, the district court simply stated that Congress did not intend for

courts to automatically grant higher attorney fees simply because of an increase in the cost of

living. While this is true, the district court’s failure to explain why “$125 per hour is sufficient”

in this case was an abuse of discretion.

        Although we have recently held that state bar reports provide evidence of reasonable

hourly attorney rates, Minor, 826 F.3d at 833, a plaintiff must also provide evidence that an

attorney fee rate above $125 per hour in her case is justified by the “kind and quality of the

services furnished.” 28 U.S.C. § 2412(d)(2)(A). That is, the plaintiff bears the burden of

demonstrating why a higher attorney fee is justified according to the facts of her case. We hold

yet again that a plaintiff’s submission of data alone is merely necessary, not sufficient, to meet

her burden for higher attorney fee rate under the EAJA. If the plaintiff fails to provide such

evidence that a higher hourly rate is justified in her case, a district court must say so in rejecting

an attorney fee rate above $125 per hour. Our most recent published cases—Minor and Clark—

support this holding, contrary to Caviness’s argument. While the district court must give an

adequate explanation for its calculation of an attorney fee rate, neither the statute nor our

precedents require the district court to grant a higher hourly rate when presented solely with the

CPI or a state bar report.




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No. 15-2002, Caviness v. Comm’r of Social Security


                                                     III.

        We affirm the district court’s ruling that the EAJA does not provide an automatic cost-of-

living adjustment. But because the district court did not adequately explain its decision to award

fees at a rate of $125 per hour, as opposed to $185.01 per hour or some other rate, we vacate its

previous judgment and remand for further proceedings consistent with this opinion.




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