Wyers v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER awarding Attorney Fees in the amount of $2,879.30. Signed by Honorable James R. Marschewski on May 15, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CIVIL NO. 11-2028
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
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. 12. 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
Plaintiff, Paul Wyers, appealed the Commissioner’s denial of benefits to this court. On
February 15, 2012, an Order was entered remanding the case pursuant to sentence four of 42
U.S.C. § 405(g). ECF No. 11.
On April 24, 2012, 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 $2,880.30 representing
14.70 attorney hours at a rate of $174.00 per hour for all work performed and 4.30 paralegal hours
at a rate of $75.00. ECF No. 13-2. On May 8, 2012, the defendant filed a response voicing no
objections. ECF No. 14.
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
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). In the
present case, the Commissioner has voiced no objection to the fee amount requested. 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
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 the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 10, 11.
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. 14. 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 that attorney fees be paid at a rate of $174.00 per hour for work
performed in 2010, 2011, and 2012. This hourly rate is authorized by the EAJA for 2011 and
2012, because counsel has submitted proof supporting his request for a higher fee and the rate
requested does not exceed the CPI for those years. However, it does exceed the CPI for 2010.
Accordingly, Plaintiff is only entitled to an hourly rate of $173.00 per attorney hour for work
performed in 2010.
Plaintiff’s counsel has also requested compensation for paralegal time at the rate of $75.00
per hour. Defendant does not object to this hourly rate. ECF No. 16. Accordingly, we find $75.00
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. ECF
No. 13-1. The Defendant does not object to the time requested, and we find this time to be
Plaintiff is entitled to an attorney’s fee award under EAJA in the amount of $2879.30,
representing 1.00 attorney hours in 2010 at an hourly rate of $173.00, 13.70 attorney hours at an
hourly rate of $174.00 for work performed in 2011 and 2012, and 4.30 paralegal hours at an hourly
rate of $75.00.
Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA fee award should be
made payable to Plaintiff. However, as a matter of practice, an EAJA fee made payable to Plaintiff
may properly be mailed to Plaintiff’s counsel.
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.
Based upon the foregoing, the Court awards Plaintiff $2,879.30 pursuant to the EAJA, 28
U.S.C. § 2412.
Dated this 15th day of May 2012.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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