Keigley v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER awarding plaintiff attorney fees under the EAJA in the amount of $2,426.75 and interest at the rate of.10% per annum until paid. 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, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable James R. Marschewski on August 31, 2011. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOHNNY G. KEIGLEY
CIVIL NO. 10-2082
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff, Johnny Keigley, appealed the Commissioner’s denial of benefits to this court.
On May 31, 2011, an Order was entered remanding the case pursuant to sentence four of 42
U.S.C. § 405(g). ECF No. 16. On August 15, 2011, plaintiff filed a motion for attorney’s fees
and costs under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”)
requesting $2,905.75 for 16.55 attorney hours at a rate of $165.00 per hour, and 3.50 paralegal
hours at a rate of $50.00 per hour. ECF No. 18-2. The defendant has filed a response to
plaintiff’s voicing no objections to Plaintiff’s motion. ECF No. 19.
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). The
Commissioner filed a Response voicing no objection to the award of attorney fees in this case.
The court construes this action and lack of opposition to the award of a reasonable fee as an
admission that the government’s decision to deny benefits was not “substantially justified.”
Therefore, we find plaintiff to be a prevailing party in this matter.
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 purposes 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).
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). 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).
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 case, counsel has attached a summary of the Consumer Price Index as an exhibit
and presented evidence of an increase in the cost of living. The court agrees with counsel that
a cost of living increase is appropriate. We find that an award based upon an hourly rate of
$165.00 per hour, reflecting an increase in the cost of living, is appropriate in this instance. See
Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990). Thus, counsel will be awarded $165.00
per hour for all work performed before this Court.
Plaintiff’s counsel has also requested compensation for paralegal time at the rate of
$50.00 per hour. Accordingly, we find $50.00 per hour for paralegal work to be a reasonable
rate. See Richlin Security Service Company v. Chertoff, 128 S.Ct. 2007 (U.S. 2008).
We have reviewed counsel’s itemization of time appended to plaintiff’s application.
Counsel seeks compensation for .20 paralegal hours for verifying valid service of summons and
executing and filing the Return of Service and .30 paralegal hours for preparing and scanning the
Affidavit of Service. We find that filing, faxing, and mailing documents, as well as verifying
service are tasks that could have easily been performed by support 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 .50
paralegal hours from the total number of compensable hours.
In addition, counsel requests reimbursement for 2.00 paralegal hours for preparing the
Motion for EAJA fees. We find the total amount of time requested to be excessive. See Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). Therefore, we will reduce counsel’s total number of
compensable hours by .50 paralegal hours.
Counsel also requests compensation for 14.60 attorney hours for reviewing the transcript
and preparing plaintiff’s brief and a Motion to Introduce New and Material Evidence. However,
there were no unique or complex issues to be developed in this particular case, and the transcript
was approximately 388 pages long. Plaintiff’s counsel frequently represents social security
plaintiff’s before this court and should be well versed in social security law. Accordingly, we
find that the time submitted for preparing this brief and motion to be excessive. Therefore we
are reducing the number of hours submitted for the preparation of plaintiff’s brief to 12.00 hours.
Based on the above, we will award plaintiff attorney fees under the EAJA for: 13.95
(16.55-2.60) attorney hours, at the rate of $165.00 per hour and 2.50 (3.50-1.00) paralegal hours
at the rate of $50.00 per hour for a total fee award of $2,426.75. 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 should be 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.
Further, 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, 2252-2253
(2010). Therefore, any EAJA award by this Court should be made payable to plaintiff and not
Dated this 31st day of August 2011.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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