Honey v. Social Security Administration Commissioner
ORDER granting 13 Motion for Attorney Fees in the amount of $2,873.55, pursuant to the Equal Access to Justice Act. Signed by Honorable James R. Marschewski on August 19, 2011. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MARLA FAYE HONEY
CIVIL NO. 10-2017
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Aurora A. Hurlocker, appealed the Commissioner’s denial of benefits to this
court. ECF No. 1. On February 23, 2011, judgment was entered remanding Plaintiff’s case to
the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 12. Plaintiff now
moves for an award of $3,215.40 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 17.10 attorney hours at a rate of
$174.00 and 3.20 paralegal hours at a rate of $75.00. ECF Nos. 13, 14. Defendant has filed a
response objecting only to the method of payment.1 ECF No. 15.
Pursuant to 28 U.S.C. § 2412(d)(1)(A), the court must award attorney’s fees to a
prevailing social security claimant unless the Commissioner’s position in denying benefits was
substantially justified. The burden is on the Commissioner to show substantial justification for
the government’s denial of benefits. Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986). After
reviewing the file, we find Plaintiff is a prevailing party in this matter. Under Shalala v.
On June 14, 2010, the Supreme Court held that an EAJA fee award is payable to the prevailing
litigant, not the prevailing litigant’s attorney. Astrue v. Ratliff, 130 S.Ct. 2521, 2252-2253 (2010). Therefore,
any EAJA fee awarded by this court should be payable directly to Plaintiff. However, if it is determined that
Plaintiff does not owe a debt to the United States, then the Commissioner has agreed to waive the requirements
of the Anti-Assignment Act and honor the contractual agreement between Plaintiff and her counsel, making any
EAJA award payable directly to counsel. See Def.’s Resp. 3, ECF No. 15.
Schaefer, 509 U.S. 292, 302 (1993), a social security claimant who obtains a sentence-four
judgment reversing the Commissioner’s denial of benefits and remanding the case for further
proceedings is a prevailing party.
An award of attorney’s fees under the EAJA is appropriate even though at the conclusion
of the case, Plaintiff’s attorney may be authorized to charge and collect a fee pursuant to 42
U.S.C. § 406(b)(1). Recovery of attorney’s fees under both the EAJA and 42 U.S.C. § 406(b)(1)
was specifically allowed when Congress amended the EAJA in 1985. Gisbrecht v. Barnhart,
535 U.S. 789, 796, 122 S.Ct. 1817, 1822, 152 L.Ed.2d 996 (2002), citing Pub.L. 99-80, § 3, 99
Stat. 186 (1985).
To permit a fee award under the EAJA, assuming, of course, that the necessary
standard is met, in addition to that allowed by the district court out of a
claimant’s past-due benefits does no more than reimburse the claimant for his or
her expenses and results in no windfall for the attorney.
Meyers v. Heckler, 625 F.Supp. 228, 231 (S.D.Ohio 1985). Furthermore, awarding fees under
both acts facilitates the purpose of the EAJA, which is to shift to the United States the prevailing
party’s litigation expenses incurred while contesting unreasonable government action. Id. See
also Cornella v. Schweiker, 728 F.2d 978 (8th Cir.1984).
The EAJA further 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.” 28 U.S.C. § 2412(d)(1)(B). Attorneys seeking fees under federal fee-shifting
statutes 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).
In determining a reasonable attorney’s fee, the court will in each case consider the
following factors: time and labor required; the difficulty of questions involved; the skill required
to handle the problems presented; the attorney’s experience, ability, and reputation; the benefits
resulting to the client from the services; the customary fee for similar services; the contingency
or certainty of compensation; the results obtained; and the amount involved. Allen v. Heckler,
588 F.Supp. 1247 (W.D.N.Y. 1984).
However, the EAJA is not designed to reimburse without limit. Pierce v. Underwood,
487 U.S. 552, 573 (1988). The district court is “in the best position to evaluate counsel’s
services and fee request, particularly when the court has had the opportunity to observe firsthand
counsel’s representation on the substantive aspects of the disability claim.” Hickey v. Secretary
of HHS, 923 F.2d 585, 586 (8th Cir. 1991) (quoting Cotter v. Bowen, 879 F.2d 359, 361 (8th Cir.
1989)). The court can determine the reasonableness and accuracy of a fee request, even in the
absence of an objection by the Commissioner. See Decker v. Sullivan, 976 F.2d 456, 459 (8th
Cir. 1992) (“Although the issue was not raised on appeal, fairness to the parties requires an
accurately calculated attorney’s fee award.”).
The Contract with America Advancement Act of 1996, passed on March 29, 1996,
amended the EAJA and increased the statutory ceiling for the EAJA fee awards from $75.00 to
$125.00 per hour. See 28 U.S.C. § 2 412(d)(2)(A). Attorney’s fees may not be awarded in
excess of $125.00 per hour, the maximum statutory rate under § 2412(d)(2)(A), unless the court
finds that an increase in the cost of living or a special factor such as the limited availability of
qualified attorneys justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase
the hourly rate is not automatic and remains at the discretion of the district court. McNulty v.
Sullivan, 886 F.2d 1074 (8th Cir. 1989). In Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990),
the court stated that the hourly rate may be increased when there is “uncontested proof of an
increase in the cost of living sufficient to justify hourly attorney’s fees of more than $75.00 an
hour,” such as a copy of the Consumer Price Index. In this instance, counsel requests attorney’s
fees at an hourly rate of $174.00. ECF No. 14, Ex. B. Counsel attached a copy of the CPI as
evidence that this rate is a proper reflection of the cost of living. ECF No. 14, Ex. F. The court
finds this rate to be reasonable.2 Accordingly, the undersigned finds that counsel is entitled to
an hourly rate of $174.00.
Counsel has also requested 3.20 hours of paralegal work at an hourly rate of $75.00,
citing Richlin Security Service Company v. Chertoff, 553 U.S. 571 (2008), as evidence that this
rate is appropriate. ECF No. 14, at 2. The court finds this rate to be reasonable. In the future,
however, counsel should submit affidavits verifying the market rate for paralegal work.
Accordingly, counsel is entitled to an hourly rate of $75.00 for paralegal work.
The court next addresses the number of hours Plaintiff’s counsel claims he spent working
on this case. Counsel requests .10 hours for receiving, reviewing and executing the magistrate
consent form and .10 hours for receiving and reviewing the scheduling order. This court
concludes that it should not have taken an attorney experienced in handling social security cases
In accordance with General Order No. 39, the court has calculated the cost of living based on the
CPI-U for the South. The undersigned believes that routine application of this standard will result in consistent
hourly fee awards in the W estern District of Arkansas. See Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.
this amount of time to perform these tasks. Bowman v. Secretary of H.H.S., 744 F.Supp. 898
(E.D.Ark. 1989). Many of these documents were single page documents requiring minimal time
to review. As such, the court grants counsel .05 hours for receiving, reviewing and executing
the magistrate consent form and .05 hours for receiving and reviewing the scheduling order.
Accordingly, the court will deduct .10 hours from the total number of compensable hours.
Counsel also requests a total of 13.80 hours for reviewing the transcript, analyzing and
researching the law, and drafting the appeal brief. However, there were no unique or complex
issues to be developed in this particular case, and the transcript was approximately 277 pages in
length. Plaintiff’s counsel frequently represents social security claimants before this court and
should be well versed in social security law. Accordingly, the court finds that the time submitted
for preparing the appeal brief is excessive. Therefore, the court will reduce the number of hours
submitted for the preparation of Plaintiff’s brief to 12.00 hours. Accordingly, the undersigned
deducts 1.80 hours from the total number of compensable hours.
Counsel requests .30 paralegal hours for verifying service and executing and filing the
return of service. However, verifying service is a task that could have been completed by support
staff. See Granville House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987) (work
which could have been completed by support staff is not compensable under the EAJA). As
such, the court will only grant counsel the time required for his paralegal to prepare the return
of service. The court grants counsel .15 hours for preparing the return of service. Accordingly,
the undersigned deducts .15 hours from the total number of paralegal hours.
Based on the above, the undersigned awards Plaintiff attorney’s fees under the EAJA for
15.20 (17.10-1.90) attorney hours at the rate of $174.00 per hour and 3.05 (3.20-.15) paralegal
hours at the rate of $75.00 per hour, for a total attorney's fee award of $2,873.55. This amount
should be paid in addition to, and not out of, any past due benefits which Plaintiff may be
awarded in the future. Further, this award should be paid directly to Plaintiff. See Astrue, 130
S.Ct. at 2529.
The parties are reminded that the award herein under the EAJA will be taken into account
at such time as a reasonable fee is determined pursuant to 42 U.S.C. § 406, in order to prevent
double recovery by counsel for the Plaintiff.
IT IS SO ORDERED this 19th day of August 2011.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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