Ward v. Social Security Administration Commissioner
ORDER granting 12 Motion for Attorney Fees in the amount of $4166.00. This amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future. Further, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable James R. Marschewski on September 24, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DEBORAH D. WARD
CIVIL NO. 11-2033
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
ORDER ON MOTION FOR ATTORNEY’S FEES
Plaintiff, Deborah D. Ward, appealed the Commissioner’s denial of benefits to this court.
ECF No. 1. On June 14, 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. 11. Plaintiff now
moves for a total of $4,166.00 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 24.40 attorney hours at an hourly
rate of $170.00 and $18.00 in costs. ECF No. 12, Ex. 1. The Commissioner has no objection.
ECF No. 15.
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 $170.00 for work performed in 2010, 2011, and 2012. ECF
No. 12, Ex. 1. Counsel provided a copy of the CPI as evidence that this rate is a proper reflection
of the cost of living. ECF No. 12, Ex. 2. The Commissioner does not object to this rate, and the
court finds it to be reasonable. ECF No. 15. Accordingly, the undersigned finds that counsel is
entitled to an hourly rate of $170.00 for work performed in 2010, 2011, and 2012.
The court next addresses the number of hours Plaintiff’s counsel claims she spent
working on this case. Counsel requests a total of 24.40 attorney hours for work performed in
2010, 2011, and 2012. ECF No. 12, Ex. 1. The court finds that counsel’s requested time is
reasonable and will award the full 24.40 hours. Accordingly, the court finds that Plaintiff is
entitled to 24.40 attorney hours at an hourly rate of $170.00.
Finally, counsel seeks reimbursement for $18.00 in costs incurred with regard to postage,
certified mail, and photocopies. ECF No. 12, Ex. 1. Such costs and expenses are recoverable
under the EAJA and the undersigned finds $18.00 to be a reasonable award. 28 U.S.C. §§
2412(a)(1), (d)(1)(A), (d)(2); Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988) (allowing
recovery of out-of-pocket expenses for telephone calls, postage, air courier costs, and travel
Based on the above, the court awards Plaintiff fees under the EAJA for 24.40 attorney
hours at an hourly rate of $170.00 and $18.00 in costs, for a total attorney's fee award of
$4,166.00. This amount should be paid in addition to, and not out of, any past due benefits
which Plaintiff may be awarded in the future. Further, this award should be made payable
directly to Plaintiff, but may be properly mailed to Plaintiff’s attorney.1 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
IT IS SO ORDERED this 24th day of September 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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
payable directly to Plaintiff, but may be properly mailed to Plaintiff’s attorney.
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