Jimerson v. Social Security Administration

Filing 26

ORDER granting petitioner ten days in which to supplement her 22 MOTION for Attorney Fees with an itemized statement so the Court can make a determination as to the reasonableness of the application. Signed by Magistrate Judge Jerome T. Kearney on 7/11/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
MAE H. JIMERSON
v.

PLAINTIFF
Civil Case No. 2:10CV00018 JTK

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration

DEFENDANT
ORDER

Pending is Plaintiff’s Motion for Attorney’s Fees and other
expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412 (docket entry #22).

In her motion, Plaintiff requests fees

of $3,500 and expenses in the amount of $44.10.

The Commissioner

does not object to the amount requested (docket entry #25).
The EAJA requires an attorney seeking fees to submit “an
itemized statement ... stating the actual time expended and the
rate at which fees and other expenses were computed.”
2412(d)(1)(B).

28 U.S.C. §

Attorneys seeking fees under federal fee-shifting

statues such as the EAJA are required to present fee applications
with “contemporaneous time records of hours worked and rates
claimed, plus a detailed description of the subject matter of the
work.”

Id.

Where documentation is inadequate, the Court may

reduce the award accordingly.

Hensley v. Eckerhart, 461 U.S. 424,

433 (1983); Gates v. Barnhart, 325 F. Supp.2d 1342, 1349 (M.D. Fla.
2002) (where applicant failed to provide detail of charges, costs
for certified mail charges not reimbursed).

Here, the Court does not find that the mere citation in the
motion of how many hours were expended and the rate at which those
hours were billed constitute an itemized statement with a detailed
description

of

the

subject

matter

of

the

work.

Therefore,

Plaintiff is hereby granted ten (10) days to supplement her EAJA
petition with an itemized statement so that the Court can make a
determination as to the reasonableness of the application.1

1

EAJA has four pleading requirements: 1) the applicant must
demonstrate that she is a “prevailing party;” 2) the applicant
must demonstrate that she is eligible for an award; 3) the
applicant must provide an itemized statement from an attorney or
expert stating the actual time expended and the rate charged; and
4) the applicant must allege that the government’s position was
not substantially justified. 28 U.S.C. § 2412(d)(1)(B). The
burden is on the applicant to establish eligibility for fees
under the EAJA. While no circuit court has ruled that a lack of
subject matter jurisdiction prohibits parties from supplementing
a timely-filed EAJA application to “flesh out” the EAJA’s
pleading requirements, some district courts have held that courts
lack subject matter jurisdiction to permit such supplementation.
See United States v. Hopkins Dodge Sales, Inc., 707 F. Supp.
1078, 1081 (D. Minn. 1989). One case has even held that only
timely-filed applications that contain averments addressing each
of the four pleading requirements can be supplemented;
conversely, applications that completely fail to address one of
the four requirements are jurisdictionally defective. See
Scarborough v. Principi, 273 F.3d 1087, 1091-92 (Fed. Cir. 2001).
From the undersigned’s research, the Eighth Circuit Court of
Appeals has determined that the EAJA’s thirty-day limit for
submitting a fee application is jurisdictional in nature. Welter
v. Sullivan, 941 F.2d 674, 675 (8th Cir. 1991). It is undisputed
that Plaintiff’s application here was timely filed. However, it
is unclear in this Circuit whether a party may supplement a
timely-filed EAJA application to meet the four pleading
requirements. Of those jurisdictions that have considered the
issue, the distinction has been made between the “filing
requirement” and the “pleading requirement.” See Dunn v. United
States, 775 F.2d 99, 104 (3rd Cir. 1985); United States v. True,
250 F.3d 410, 420 (6th Cir. 2001); Singleton v. Apfel, 231 F.3d
2

IT IS SO ORDERED this 11th day of July, 2011.

UNITED STATES MAGISTRATE JUDGE

853, 858 (11th Cir. 2000). For purposes here, the Court will
assume, without deciding, that it retains subject matter
jurisdiction to permit applicants to supplement timely-filed fee
applications.
3