Gregory v. Social Security Administration Commissioner
ORDER awarding attorney fees in the amount of $3,621.00. This amount should be paid in addition to, and not out of, any past due benefits which Plaintiffmay be awarded in the future. Signed by Honorable James R. Marschewski on August 31, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DANIEL T. GREGORY
CIVIL NO. 10-2070
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Daniel T. Gregory, appealed the Commissioner's denial of benefits to this court.
On May 2, 2011, judgment was entered remanding Plaintiff's case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 10. On July 24, 2011,
Plaintiff moved for an award of $4488.00 in attorney’s fees under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 26.40 attorney hours at an hourly
rate of $ 170.00. ECF No. 11. Defendant did not object to either the hourly rate or the number
of hours requested. ECF No. 13.
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.
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 (“CPI”).
In this case, counsel has referred to the Consumer Price Index and prior decisions of this
court as evidence of an increase in the cost of living1. Accordingly, we find that Plaintiff’s
counsel is entitled to an hourly rate above the statutory minimum in the amount of $170.00 per
We next address the number of hours Plaintiff’s counsel claims he spent working on this
case. Counsel requests .50 hours for reviewing the file regarding deadline for complaint and
staff’s attempts to reach client, and a second letter regarding appeal rights and deadlines; 1.25
hours for drafting the complaint, approving complaint transmittal letter, civil cover sheet,
summonses and instructing staff to hand deliver; .50 hours for reviewing, approving and signing
service of process; .25 hours for reviewing Defendant’s answer and scheduling order; .25 hours
for looking for the transcript and asking staff about it; 1.25 hours for reviewing Defendant’s brief
and drafting a memo to file; .25 hours for another review and memo to the file; 1.25 hours for
reviewing the memorandum opinion and drafting another memo to the file; and 2.75 hours for
correspondence and drafting of the EAJA motion. The court concludes that it should not have
taken an attorney experienced in handling social security cases this amount of time to perform
these tasks. Bowman v. Secretary of H.H. S., 744 F.Supp. 898 (E.D. Ark. 1989). Therefore we
will deduct 4.55 hours from counsel’s total number of compensable hours.
Counsel requests compensation for .25 hours for reviewing mail, getting a paper copy of
In accordance with General Order No. 39, we have calculated the cost of living based on the
Consumer Price Index for the South. W e believe 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. 1990).
the complaint packet back from court, confirming case date, checklist and deadline regarding
service of process; .10 hours for reviewing the file and confirming green card return; .10 hours
for reviewing the file and emailing defendant regarding transcript; and .10 hours for reviewing
the file and receiving an email that the transcript had been found. This time cannot be
compensated under the EAJA, as it required no legal expertise and could have been performed
by any general member of counsel's staff. 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). Therefore we will deduct .55 hours from counsel’s total number
of compensable hours.
Counsel requests compensation for a total of 12.25 hours for reviewing the transcript,
researching the law, and drafting the appeal brief in this case. ECF No. 11-1. We find this time
to be reasonable.
Based on the above, we award Plaintiff's attorney fees under the EAJA for 21.30 (26.40 5.10) attorney hours at the rate of $170.00 per hour, for a total attorney's fee award of $3621.00.
This amount should be paid in addition to, and not out of, any past due benefits which Plaintiff
may be awarded in the future.
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.
The Supreme Court has 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, 2522-2523, 177 L.Ed.2d
91 (2010). Therefore, any EAJA award by this Court should be made payable to plaintiff and
not plaintiff's counsel.
IT IS SO ORDERED this 31st day of August, 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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