Brown v. Social Security Administration Commissioner
ORDER granting Motion for Attorney Fees, in the amount of $3869.42. 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 June 7, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MARTINA LEE BROWN
CIVIL NO. 2:10-CV-02197
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
ORDER ON MOTION FOR ATTORNEY’S FEES
Plaintiff, Martina Lee Brown, appealed the Commissioner’s denial of benefits to this
court. ECF No. 1. On January 1, 2012, a judgment was entered remanding Plaintiff’s case to
the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 10. Plaintiff now
moves for a total of $3845.40 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 24.65 attorney hours at a rate of
$156.00 and reimbursement for out-of-pocket postage of $24.02 payable directly to Plaintiff’s
counsel. ECF Nos. 11, Exs. 5 and 6, 12. The government did not file a response to Plaintiff’s
motion, and thereby, did not object to the requested fee amount.
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 instance, counsel requests
attorney’s fees at an hourly rate of $156.00. ECF No. 11. Counsel presented a link to the CPI
as evidence that this rate is a proper reflection of the cost of living. ECF No. 11, Ex. 2.
Defendant did not object to this motion, and the court finds it to be reasonable. Accordingly, the
undersigned finds that counsel is entitled to an hourly rate of $156.00.
The court next addresses the number of hours Plaintiff’s counsel claims she spent
working on this case. Counsel requests reimbursement for a total of 24.65 hours for work
performed in 2010 and 2011. ECF No. 11, Ex. 5. The court finds that counsel’s requested time
is reasonable, and, as such, will award the full 24.65 hours. Accordingly, the court finds that
counsel is entitled to 24.65 attorney hours at an hourly rate of $156.00.
Reimbursement for Out-of-Pocket Postage
Counsel also requests compensation for out-of-pocket postage and filing expenses of
$24.02. ECF No. 11, Ex. 6. A prevailing party that satisfies EAJA's other requirements may
recover telephone, postage, travel and photocopying expenses under EAJA so long as the fees
are reasonable. Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir. 1986).
The court finds $24.02 for postage and filing is reasonable, and Defendant did not object to the
motion. Accordingly, the court finds that counsel is entitled to reimbursement of $24.02.
Fees Payable Directly to Plaintiff’s Attorney
Counsel requests that all fees be paid directly to her rather than to Plaintiff. ECF No. 11,
Exs. 3 and 4. In support of her position, Counsel contends that when the Supreme Court held
attorney fees under 28 U.S.C. § 2412 (d) are payable to the litigant, not directly to the litigant’s
attorney, that the Court did not expressly reject the use of assignment of the awarded fees.
Astrue v. Ratliff, 130 S.Ct. 2521, 2524-26 (2010). Counsel also directs the court to consider that
Plaintiff has agreed to have the award paid directly to her attorney. ECF No. 11, Exs. 3 and 4.
See also ECF No. 12.
According to the Anti-Assignment Act, an assignment may be made “only after a claim
is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been
issued.” 31. U.S.C. § 3727(b). Additionally, the assignment shall specify the warrant, must be
made freely, and must be attested to by two witnesses. Id. The court finds that these
requirements have not been met since the EAJA order has not yet been issued. Furthermore, the
undersigned feels that the task of determining whether outstanding debts exist is best left to the
government. Accordingly, pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA
award should be made payable to Plaintiff. And, in keeping with the common practice of this
court, the court directs the EAJA award be mailed to Plaintiff’s counsel.
Based on the above, the court awards Plaintiff's attorney fees under the EAJA for 24.65
attorney hours at the rate of $156.00 per hour and reimbursement for out-of-pocket expenses of
$24.02, for a total attorney's fee award of $3869.42. 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 made payable directly to Plaintiff, but properly mailed to Plaintiff’s attorney.1
On June 14, 2010, the Supreme Court overturned Ratliff v. Astrue, 540 F.3d 800, 802 (8th Cir. 2008),
and 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
The parties are reminded that the award 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 6th day of June 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
payable directly to Plaintiff, but properly mailed to Plaintiff’s attorney.
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