Garner v. Social Security Administration Commissioner

Filing 18

MEMORANDUM OPINION AND ORDER The plaintiff is awarded $2311.75, pursuant to the Equal Access to Justice act, 28 U.S.C. 2412. Parties should be reminded that the award 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. Signed by Honorable James R. Marschewski on November 9, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KERRY GARNER
v.

PLAINTIFF
CIVIL NO. 10-2099

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). ECF No. 16. The Defendant has filed a response to said
motion. The parties have consented to the jurisdiction of a magistrate judge to conduct any and
all proceedings in this case, including conducting the trial, ordering the entry of a final judgment,
and conducting all post-judgment proceedings. ECF No. 5. Pursuant to this authority, the Court
issues this Order.
I.

Background:
Plaintiff, Kerry Garner, appealed the Commissioner’s denial of benefits to this court. On

August 4, 2011, an Order was entered remanding the case pursuant to sentence four of 42 U.S.C.
§ 405(g). ECF No. 14.
On October 11, 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 $2,311.75
representing 12.95 attorney hours at a rate of $165.00 per hour and 3.50 paralegal hours at an
hourly rate of $50.00. ECF No. 16-2. On October 25, 2011, the defendant filed a response
voicing no objections. The Defendant did, however, indicate that the EAJA payment should be
made payable to Plaintiff, but could be mailed to Plaintiff’s counsel. ECF No. 17.

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II.

Applicable Law:
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 the Motion to Remand initiating the remand in this case, and has voiced no
objection to an award of fees in this matter. 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

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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
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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.
III.

Discussion:
In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 13-14.

Defendant does not contest Plaintiff’s claim that she is the prevailing party, does not oppose her
application for fees under the EAJA, does not object to the hourly rate requested, and does not
dispute the number of hours expended by counsel. ECF No. 17. The Court construes this lack
of opposition to this application as an admission that the government’s decision to deny benefits
was not “substantially justified” and that Plaintiff is the prevailing party.
Plaintiff requests a total award of $2,311.75 under the EAJA. ECF No. 16-2. Plaintiff
requests these fees at a rate of $165.00 per hour for 12.95 hours of attorney work. This hourly
rate is authorized by the EAJA because counsel has submitted proof supporting his request for
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a higher fee.1 Therefore, this hourly rate is authorized by the EAJA, and this Court finds that
Plaintiff is entitled to an hourly rate of $165.00 per attorney hour.
Plaintiff’s counsel has also requested compensation for paralegal time at the rate of
$50.00 per hour. Again, Defendant does not object to this hourly rate. ECF No. 17.
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).
In addition, we have reviewed counsel’s itemization of time appended to Plaintiff’s
application. ECF No. 16-1. The Defendant has not objected to the number of hours for which
counsel seeks a fee award. Further, I find the time asserted to be spent in the representation of
Plaintiff before the district court is reasonable. Plaintiff is entitled to an attorney’s fee award
under EAJA in the amount of $2,311.75, representing 12.95 attorney hours at an hourly rate of
$165.00, and 3.50 paralegal hours at a rate of $50.00 per hour.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Astrue
v. Ratliff, 130 S.Ct. 2521, 2528 (2010). ECF No. 14. Ratliff requires that attorney’s fees be
awarded to the “prevailing party” or the litigant. See id., 130 S.Ct. 2521, 2528 (2010). Thus,
these fees must be awarded to Plaintiff, not to Plaintiff’s attorney. However, if Plaintiff has
executed a valid assignment to Plaintiff’s attorney of all rights in an attorney’s fee award and
Plaintiff owes no outstanding debt to the federal government, the attorney’s fee may be awarded
to Plaintiff’s attorney.

1

Although counsel did not attach a copy of the CPI to his brief, he did provide a link to the CPI and
also cited to other cases wherein he has been awarded $165.00 per hour. Accordingly, we find this sufficient
proof to establish entitlement to a higher fee.

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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.
IV.

Conclusion:
Based upon the foregoing, the Court awards Plaintiff $2,311.75 pursuant to the EAJA, 28

U.S.C. § 2412.
Dated this 9th day of November 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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