Sherry Denise Taylor (20-5632) v. Commissioner of Social Security

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0206p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DANIEL L. DOUCETTE (20-5592); SHERRY DENISE
TAYLOR (20-5632),
Plaintiffs-Appellants,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Nos. 20-5592/5632
Appeals from the United States District Court for the Eastern District of Kentucky at Pikeville.
Doucette: No. 7:16-cv-00075—Danny C. Reeves, District Judge;
Taylor: No. 7:18-cv-00071—Joseph M. Hood, District Judge.
Argued: July 28, 2021
Decided and Filed: September 2, 2021
Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Elizabeth Bewley, Julia M. Prochazka, WILMER CUTLER PICKERING HALE
AND DORR LLP, Boston, Massachusetts, Daniel S. Volchok, Arpit K. Garg, WILMER
CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Evan B. Smith,
APPALRED LEGAL AID, Prestonsburg, Kentucky, for Appellants. Laura H. Holland, SOCIAL
SECURITY ADMINISTRATION, Denver, Colorado, Charles P. Wisdom, Jr., Cheryl D.
Morgan, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
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OPINION
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GRIFFIN, Circuit Judge.
In these consolidated cases, plaintiffs sought attorney’s fees from the federal government
under the Equal Access to Justice Act (“EAJA”). Both district courts awarded fees, but not in
the amounts requested. Plaintiffs appeal, arguing that one district court erred by holding that the
EAJA does not authorize fees for work performed after the judgment becomes final and that both
district courts abused their discretions by awarding below-market hourly rates. We agree on
both points, so we vacate the district courts’ fee awards and remand.
I.
Attorney Eric Conn represented plaintiffs Daniel Doucette and Sherry Taylor (and
thousands of other claimants) in seeking disability benefits from the Social Security
Administration (“SSA”). But it turned out that Conn was a fraudster; he bribed doctors to certify
false disability applications and bribed an administrative law judge to approve those applications.
See Hicks v. Comm’r of Soc. Sec., 909 F.3d 786, 793 (6th Cir. 2018). All told, Conn caused the
SSA to pay out millions of dollars in fraudulent benefits and fees.
After Conn’s scheme came to light, the SSA identified over 1,700 applications that it
believed were tainted by his fraud and redetermined these applicants’ eligibility for benefits. Id.
at 794. Many former Conn clients took issue with how the SSA redetermined eligibility,
however, and years of litigation ensued. In Hicks, we held that the SSA’s redetermination
procedures violated due process and the Administrative Procedure Act. Id. at 813.
Before Hicks issued, the SSA redetermined plaintiffs’ eligibility for benefits and denied
their applications. They each filed a civil action for judicial review. See 42 U.S.C. § 405(g).
Taylor’s case was immediately stayed pending the Hicks decision. The SSA then moved
to remand to the agency. The district court granted the SSA’s motion and sent her case back to
the agency via a judgment. Taylor then moved for attorney’s fees under the EAJA. She sought

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an hourly rate of $203 for 9.1 hours of work, for a total of $1,847.30. The SSA agreed that a fee
award was appropriate but argued for a lower rate and disqualification of certain hours. Taylor
filed a reply, addressing the SSA’s arguments and requesting additional attorney’s fees for the
four hours required to prepare the reply. As explained in detail below, the district court decided
that the statutory rate of $125 was appropriate and that only hours worked before the deadline to
appeal were compensable under the EAJA. Taylor v. Berryhill, No. 7:18-cv-071, 2019 WL
3068449, at *4, *6 (E.D. Ky. July 12, 2019). Because Taylor’s attorney had drafted the reply
after the time to appeal had expired, the district court disallowed those hours and awarded only
$1,137.50 in attorney’s fees. Id. at *6–7.
Doucette’s case involved more substantive legal work. The district court initially decided
his challenge to the SSA’s decision on the merits, granting summary judgment in favor of the
Commissioner. Doucette appealed and filed an opening brief in this court. But when we issued
Hicks, the SSA agreed to remand to the agency. After that remand, Doucette filed a motion for
attorney’s fees in the district court, requesting an hourly rate of $207.67 for 41.8 hours worked,
for a total of $8,680.61. The SSA agreed with this request in full. The district court, however,
reduced the hourly rate to $150, resulting in a fee award of $6,270. Doucette v. Saul, No. 7:16-
075, 2020 WL 1695491, at *2 (E.D. Ky. April 7, 2020).
Taylor and Doucette appealed the district courts’ reductions of their fee requests, and we
consolidated their appeals for review.
II.
Plaintiffs challenge the district courts’ EAJA fee awards. According to the Supreme
Court, the EAJA’s “specific purpose” “is to eliminate for the average person the financial
disincentive to challenge unreasonable governmental actions.” Comm’r of I.N.S. v. Jean, 496
U.S. 154, 163 (1990). To this end, the EAJA allows a Social Security claimant who successfully
challenged the SSA’s denial of benefits in federal court to seek reasonable attorney’s fees from
the government. 28 U.S.C. § 2412(d)(1)(A); see Coursey v. Comm’r of Soc. Sec., 843 F.3d 1095,
1097 (6th Cir. 2016). And because “Congress intended the EAJA to cover the cost of all phases
of successful civil litigation addressed by the statute,” the Supreme Court has allowed claimants

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to receive “fees-on-fees” (i.e., attorney’s fees incurred while pursuing attorney’s fees for the
substantive portion of the case). Jean, 496 U.S. at 166 (emphasis added).
The district court “shall” award reasonable attorney’s fees “unless the court finds that the
position of the United States was substantially justified or that special circumstances make an
award unjust.” § 2412(d)(1)(A). Here, the SSA has conceded that fee awards are appropriate;
the only question is how much those awards should be. To calculate fee awards, district courts
use the lodestar amount, which is the “product of the number of hours billed and a reasonable
hourly rate.” Minor v. Comm’r of Soc. Sec., 826 F.3d 878, 881 (6th Cir. 2016) (citation omitted).
The EAJA provides that hourly rates shall be determined “based upon prevailing market rates for
the kind and quality of the services furnished,” but also imposes a presumptive cap of $125 per
hour. § 2412(d)(2)(A). A court can exceed the cap if it “determines that an increase in the cost
of living or a special factor . . . justifies a higher fee.” Id. A fee applicant “bear[s] the burden of
producing appropriate evidence to support [a] requested increase.” Bryant v. Comm’r of Soc.
Sec., 578 F.3d 443, 450 (6th Cir. 2009).
We review “a district court’s award or denial of EAJA attorney’s fees for an abuse of
discretion.” Minor, 826 F.3d at 882. “[A] district court abuses its discretion when it relies on
clearly erroneous findings of fact, when it improperly applies the law, or uses an erroneous legal
standard[.]” Id. (citation and brackets omitted). We also provide “substantial deference” to a
district court’s lodestar calculation, “but only when the court provides a ‘clear and concise
explanation of its reasons[.]’” Id. (citation omitted). A district court thus abuses its discretion to
determine a fee award when it “fails to explain its reasoning adequately or to consider the
competing arguments of the parties.” Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624,
643 (6th Cir. 2009) (citation omitted).
A.
We first address the Taylor court’s ruling that the time spent on her reply brief could not
be compensated for under the EAJA. The court reasoned that, because the EAJA allows a
prevailing party to recover attorney’s fees “incurred by that party in any civil action,” 28 U.S.C.
§ 2412(d)(1)(A), only fees incurred during a civil action were compensable. Taylor, 2019

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WL 3068449, at *5. The court determined that an “action is said to terminate at judgment.” Id.
(citation omitted). And because the EAJA defines “final judgment” as “a judgment that is final
and not appealable,” § 2412(d)(2)(G), the district court concluded that “a civil action terminates
in the EAJA context once a judgment has been entered and the time to appeal ha[s] expired for
all parties.” Taylor, 2019 WL 3068449, at *6. The reply was drafted after the time to appeal
expired, so the district court held that the EAJA did not authorize fees for this work because it
was not incurred during a civil action. Id.
Standing alone, this reasoning may seem sound enough. But upon closer examination, it
quickly falls apart.
To begin, the district court’s narrow definition of “civil action” does not align with the
Supreme Court’s interpretation of that term. Although “[a]ny given civil action can have
numerous phases[] . . . the EAJA—like other fee-shifting statutes—favors treating a case as an
inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161–62. The EAJA’s use
of “civil action” thus includes both the substantive portion of a case and the associated fee
litigation. See id. at 162 (declining to subject an application for fees-on-fees “to an additional
substantial justification defense”). Moreover, where proceedings “are ‘necessary to the
attainment of the results Congress sought to promote by providing for fees, they should be
considered part and parcel of the action for which fees may be awarded.’” Id. (quoting Sullivan
v. Hudson, 490 U.S. 877, 888 (1989)). And the Supreme Court has recognized—without
qualification—that “Congress intended the EAJA to cover the cost of all phases of successful
civil litigation addressed by the statute.” Id. at 166 (emphasis added).
If Supreme Court precedent was not enough, other parts of the EAJA also cut against the
district court’s hard-and-fast deadline for fee eligibility. Section 2412(d)(1)(B) provides the
timeframe for seeking an EAJA fee award:
A party seeking an award of fees and other expenses shall, within thirty days of
final judgment in the action, submit to the court an application for fees and other
expenses . . . .
28 U.S.C. § 2412(d)(1)(B) (emphasis added). As the district court noted, the EAJA defines
“final judgment” as “a judgment that is final and not appealable.” § 2412(d)(2)(G). Thus,

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Congress contemplated that fee applicants would have up to 30 days after a judgment became
non-appealable to begin the fee-seeking process. But if an attorney takes full advantage of this
time and prepares a fee application after the appeal deadline but before the 30-day period’s end,
the Taylor court’s rule bars him from receiving any compensation for that work. This rule thus
creates the strange possibility of a fee application that is both timely and not compensable—a
result at odds with the statute’s purpose and authorization of “fees-on-fees” awards.
Or consider another hypothetical. A plaintiff files her fee application before the time to
appeal has expired, but the government opposes her request. The district court schedules oral
argument on the application and the hearing occurs after the judgment becomes final. Under the
Taylor court’s interpretation of the EAJA, plaintiff would be able to receive attorney’s fees for
the time spent drafting the application, but not the time spent arguing in support of that
application at the hearing. To borrow the Supreme Court’s words, “[w]e find no textual or
logical argument for treating so differently a party’s preparation of a fee application and its
ensuing efforts to support that same application.” Jean, 496 U.S. at 162. This sentiment rings
just as true when considering a reply filed in support of a fee application.
Moreover, the district court’s rule is an ill-fit for modern fee-shifting litigation. The
court’s holding hinged on its observation that an “action is said to terminate at judgment.”
Taylor, 2019 WL 3068449, at *5 (citation omitted). To support this proposition, it relied on a
treatise published in 1885. See id. (citing 1 Morris M. Estee, Estee’s Pleadings, Practice, and
Forms § 3, at 1 (Carter P. Pomeroy ed., 3d ed. 1885)). Although judgment might have been the
end of every lawsuit in the nineteenth century—when the pay-your-own-lawyer regime known as
the “American Rule” was ubiquitous, see generally Alyeska Pipeline Serv. Co. v. Wilderness
Soc., 421 U.S. 240, 247–70 (1975)—the past century has seen the enactment of more than 200
fee-shifting provisions in the federal sphere alone. See Henry Cohen, CONG. RESEARCH SERV.,
94-970, Awards of Attorneys’ Fees by Federal Courts and Federal Agencies 63–113 (2007)
(available at https://apps.dtic.mil/sti/pdfs/ADA465374.pdf). Like the EAJA, many of these
statutes require a fee recipient to be a prevailing party, and the most common way to prevail is to
obtain an “enforceable judgment[] on the merits.” Buckhannon Bd. and Care Home, Inc. v. West

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Virginia Dept. of Health and Hum. Res., 532 U.S. 598, 604 (2001). Thus, when fee litigation is
authorized, it usually occurs after judgment.
To be sure, the American Rule still predominates in this country and judgment typically
marks a case’s end. But saying that post-judgment fee litigation is not part of civil actions today
ignores the realities of how lawsuits filed under fee-shifting statutes work. These kinds of
actions do not terminate at judgment.
The SSA’s defense of the district court’s ruling largely misses the point. The SSA relies
exclusively on the abuse-of-discretion standard, arguing that the district court “reasoned that the
fees were not compensable because they were not expended litigating the merits of Taylor’s case
and because Taylor did not actually prevail in this aspect of the fee litigation in the sense that her
arguments for a heightened hourly rate under the EAJA were rejected.”
The district court, however, did not decide compensability as a matter of discretion.
Instead, it viewed the task before it as “determin[ing] the meaning of some of the terms within
the [EAJA] to determine if the reported time at issue is compensable.” Taylor, 2019 WL
3068449, at *4. For that task, it observed that “[t]he language of the statute is a good place to
start . . . and . . . is also the ending point if the plain meaning of the statutory language is clear,”
id.—a sure sign of statutory interpretation, which typically triggers de novo review by this court,
see Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir. 2011). The district court then examined the
EAJA’s text, dictionary definitions, a treatise, and the “procedural history of amendments to the
EAJA and the congressional record,” before concluding that “fees arising out of fee litigation
may not be incurred once the civil action has terminated,” and that Taylor’s requested post-final-
judgment time “is not compensable under the EAJA.” Taylor, 2019 WL 3068449, at *5–6
(emphasis added).
True, the district court at one point alluded to reasons why it thought awarding fees for
Taylor’s reply would be an “odd result.” Taylor v. Berryhill, No. 7:18-cv-071, 2020 WL
1921550, at *5 (E.D. Ky. April 20, 2020) (order denying reconsideration). But these few
sentences come after the court discussed at length why it could not “circumvent” the EAJA’s
“statutory requirement.” Id.; Taylor, 2019 WL 3068449, at *4–6. And, more importantly, the

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district court never went so far as to offer its concerns as an alternative basis for denial. Taylor,
2020 WL 1921550, at *5. Simply put, this was a legal determination of ineligibility, not an
exercise of discretion.
In sum, we do not believe that “Congress would throw the Social Security claimant a
lifeline it knew was a foot short” by disallowing fees incurred after final judgment. See Sullivan
v. Finkelstein, 496 U.S. 617, 630 (1990) (citation and internal quotation marks omitted). Instead,
we hold that courts can award attorney’s fees for work performed during “all phases of
successful civil litigation addressed by the [EAJA],” Jean, 496 U.S. at 166, even if that work is
done after the judgment becomes final. Because the district court’s interpretation of the EAJA
was legal error, we vacate that portion of the Taylor order and remand for the district court to
decide whether attorney’s fees should be granted for the hours spent preparing Taylor’s reply.
B.
We next turn to plaintiffs’ argument that the rates awarded by the district court are
unreasonable because they are far below the prevailing market rate. No one disputes that
plaintiffs offered evidence sufficient to justify an upward adjustment of the EAJA’s statutory
cap. And this evidence established a range of comparable hourly market rates between $205 and
$500. However, the district courts denied plaintiffs’ requested rates and settled on rates of $125
and $150 for two reasons: Judges in the Eastern District of Kentucky usually award only $125
per hour in social security cases, and plaintiffs’ relatively simple cases did not justify straying
too far from this practice. See Taylor, 2019 WL 3068449, at *3; Doucette, 2020 WL 1695491, at
*2.
We agree with plaintiffs that the district courts’ hourly-fee determinations were abuses of
discretion. First, the courts placed undue weight on prior fee awards while dismissing—without
explanation—plaintiffs’ evidence of current market conditions. Although prior fee awards can
“provide some inferential evidence of what a market rate is,” they “do not set the prevailing
market rate—only the market can do that.” B&G Mining, Inc. v. Dir., Office of Workers Comp.
Programs, 522 F.3d 657, 664 (6th Cir. 2008). District courts should therefore hesitate to give
controlling weight to prior awards when presented with other credible evidence of the current

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market for legal services. See Dillard v. City of Greensboro, 213 F.3d 1347, 1355 (11th Cir.
2000). That is especially true when, as here, the other evidence is unrefuted.
And the EAJA’s presumptive statutory cap presents a special reason to avoid reliance on
prior fee awards whenever possible: Awarding a $125 rate usually has nothing to do with
current market conditions or the value of comparable legal services. Instead, courts often default
to that rate because the claimant has failed to substantiate his request for a higher one. Take, for
example, the cases relied on by the district courts here. See Gibson v. Colvin, No. 2:12-131,
2013 WL 6191754, at *3 (E.D. Ky. Nov. 26, 2013) (awarding a $125 rate because the plaintiff
“ha[d] not satisfied her burden demonstrating that the fees should be increased for this matter.”);
Roberts v. Berryhill, No. 5:12-139, 2017 WL 2311870, at *2 (E.D. Ky. May 26, 2017)
(“[P]laintiff[] has not demonstrated to the Court that the prevailing market rate in the Eastern
District of Kentucky exceeds the statutory rate.”); Carson v. Colvin, No. 13-94, 2015 WL
5304627, at *2 (E.D. Ky. Sep. 8, 2015) (“There is no indication, however, that the general
private practice rates cited by Plaintiff reflect the prevailing market rate for competent
representation in social security cases in the Central Division of the Eastern District of
Kentucky.” (citation, internal quotation marks, and brackets omitted)).
Unlike those cases, plaintiffs here more than substantiated their requested rates.
Although relying on prior fee awards “may be proper in the absence of any credible evidence by
the fee applicant of a higher prevailing market rate,” Farbotko v. Clinton Cty., 433 F.3d 204, 210
(2d Cir. 2005), summarily dismissing the applicant’s evidence and treating prior default EAJA
awards as dispositive holds other plaintiffs’ shortcomings against the applicant, see Dillard, 213
F.3d at 1355. Because we see no principled reason for such an approach, we hold that the
district courts abused their discretions by giving unreasonable weight to prior fee awards.
The district courts’ silent decisions to disregard plaintiffs’ evidence also misinformed
how these cases’ complexity factored into their awards. Plaintiffs’ unrefuted evidence
established a market range between $205 and $500. Yet the district courts concluded that the
relative simplicity of the actions justified rates of only $125 and $150—even though there is no
evidence that any lawyer in the relevant communities would accept these rates for any kind of
service on even the simplest of case. The complexity of the action is relevant to determine

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“where the particular attorney’s representation lies along the spectrum of the market for legal
services.” B&G Mining, 522 F.3d at 665. It cannot be invoked to justify a rate below the
established spectrum. Accordingly, the district court’s consideration of the cases’ complexity
was also an abuse of discretion.
III.
For these reasons, we vacate the district courts’ fee awards. We remand Taylor for the
district court to decide whether plaintiff should receive fees for the hours spent preparing the
reply. We remand both cases for the district courts to determine the appropriate hourly rate
given the market range established by plaintiffs and for further proceedings consistent with this
opinion.

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