Gappmayer v. Social Security Administration Commissioner
ORDER on Motion for Attorney Fees in the amount of $4493.70. 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 January 14, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CYNTHIA L. GAPPMAYER
Civil No. 2:11-cv-02054-JRM
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
ORDER ON MOTION FOR ATTORNEY’S FEES
Plaintiff, Cynthia L. Gappmayer, appealed the Commissioner’s denial of benefits to this
court. ECF No. 1. On August 9, 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. 21. On October 30,
2012, Plaintiff filed a Motion for Attorney Fees pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, requesting compensation for 23.80 attorney hours at an hourly rate
of $174.00 and 4.70 paralegal hours at an hourly rate of $75.00. ECF Nos. 22-23. The
Commissioner filed a timely response, objecting to a total of .90 attorney hours for tasks deemed
clerical in nature. ECF No. 26.
Subsequently, the undersigned scheduled a hearing on Plaintiff’s motion, which was set
for January 15, 2013. Following notice of the hearing, the Commissioner filed a motion to
withdraw the previous objections, which the undersigned granted. ECF No. 27. Since no
remaining issues are in dispute, the undersigned canceled the hearing on Plaintiff’s EAJA fee
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 case, the undersigned finds that 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 sentencefour 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). 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 $174.00 for work
performed in 2011 and 2012. ECF No. 23, Ex. 2. Counsel presented a link to the CPI as
evidence that this rate is a proper reflection of the cost of living. ECF No. 23, at 2-3. Counsel’s
requested rate is consistent with Amended General Order 39, which sets forth the maximum
hourly rate for EAJA fees in the Western District of Arkansas. Accordingly, the undersigned
finds that counsel is entitled to an hourly rate of $174.00 for work performed in 2011 and 2012.
The court next addresses the number of hours Plaintiff’s counsel claims he spent working
on this case. Counsel requests a total of 23.80 attorney hours for work performed in 2011 and
2012. ECF No. 23, Ex. 1. The undersigned finds that counsel’s requested time is reasonable and
will award the full 23.80 hours. Accordingly, the court finds that Plaintiff is entitled to 23.80
attorney hours at an hourly rate of $174.00.
Counsel also requests compensation for 4.70 paralegal hours at an hourly rate of $75.00.
ECF No. 23, Ex. 2. A prevailing party that satisfies EAJA's other requirements may recover
paralegal fees at prevailing market rates. Richlin Sec. Service Co. v. Chertoff, 128 S.Ct. 2007,
2019 (U.S. 2008). Plaintiff’s counsel cited to Stockton v. Shalala, 36 F.3d 49 (8th Cir. 1994),
as evidence that this hourly rate is appropriate for paralegal work. ECF No. 23, at 3. The court
finds $75.00 per hour for paralegal work to be reasonable, and the Commissioner does not object
to this rate. The court also finds the requested time to be reasonable and will award the full 4.70
paralegal hours. Accordingly, the court finds that counsel is entitled to 4.70 paralegal hours at
an hourly rate of $75.00.
Based on the above, the court awards Plaintiff fees under the EAJA for 23.80 attorney
hours at an hourly rate of $174.00 and 4.70 paralegal hours at an hourly rate of $75.00, for a total
attorney's fee award of $4,493.70. 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 Plaintiff.
IT IS SO ORDERED this 14th day of January 2013.
/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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