Richardson v. Social Security Administration Commissioner
ORDER on Attorney Fees in the amount of $7,160.40. Signed by Honorable Barry A. Bryant on August 22, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
WESLEY EUGENE RICHARDSON
Civil No. 2:11-cv-02080
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Pending now before this Court is Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal
Access to Justice Act (“EAJA”). ECF No. 11. Defendant has responded to this Motion, and
Defendant claims the requested fees are excessive. ECF No. 14. 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.
Wesley Eugene Richardson (“Plaintiff”) appealed to this Court from the Secretary of the
Social Security Administration’s (“SSA”) denial of his request for disability benefits. ECF No. 1.
On May 8, 2012, Plaintiff’s case was reversed and remanded pursuant to sentence four of 42 U.S.C.
§ 405(g). ECF Nos. 9-10.
On July 26, 2012, Plaintiff filed the present Motion requesting an award of attorney’s fees
under the EAJA. ECF No. 11. With this Motion, Plaintiff requests an award of attorney’s fees of
$12,099.09, representing 77.40 hours at an hourly rate of $156.00 in addition to $24.69 in out-ofpocket expenses. Id. Defendant responded to this Motion on August 7, 2012, and Defendant objects
to Plaintiff’s requested fees as being excessive. ECF No. 14.
Pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(A), a court must award attorney's fees to a
prevailing social security claimant unless the Secretary’s position in denying benefits was
substantially justified. The Secretary has the burden of proving that the denial of benefits was
substantially justified. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir.1986) (“The Secretary
bears the burden of proving that its position in the administrative and judicial proceedings below was
substantially justified”). An EAJA application also must be made within thirty days of a final
judgment in an action, See 28 U.S.C. § 2412(d)(1)(B), or within thirty days after the sixty day time
for appeal has expired. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
An award of attorney’s fees under the EAJA is appropriate even though, at the conclusion
of the case, the plaintiff’s attorney may be authorized to charge and to 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. See Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002) (citing Pub. L. No. 99-80, 99 Stat. 186 (1985)). The United States Supreme
Court stated that Congress harmonized an award of attorney’s fees under the EAJA and under 42
U.S.C. § 406(b)(1) as follows:
Fee awards may be made under both prescriptions [EAJA and 42 U.S.C. §
406(b)(1)], but the claimant’s attorney must “refun[d] to the claimant the amount of
the smaller fee.”. . .“Thus, an EAJA award offsets an award under Section 406(b),
so that the [amount of total past-due benefits the claimant actually receives] will be
increased by the . . . EAJA award up to the point the claimant receives 100 percent
of the past-due benefits.”
Id. 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. See id.; Cornella v. Schweiker, 728 F.2d 978, 986 (8th Cir. 1984).
The statutory ceiling for an EAJA fee award is $125.00 per hour. See 28 U.S.C. §
2412(d)(2)(A). A court is only authorized to exceed this statutory rate if “the court determines that
an increase in the cost of living or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.” Id. A court may determine that there
has been an increase in the cost of living, and may thereby increase the attorney’s rate per hour,
based upon the United States Department of Labor’s Consumer Price Index (“CPI”). See Johnson
v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). See also General Order 39 (“Attorney’s Fees Under
the Equal Access to Justice Act”).
In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 9-10. Defendant
does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application
for fees under the EAJA. ECF No. 14. The Court construes the 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 $12,099.09, representing 77.40 hours of work performed
in 2011 and 2012 at an hourly rate of $156.00 in addition to $24.69 in out-of-pocket expenses. ECF
No. 11. This hourly rate of $156.00 is authorized by the EAJA as long as the CPI-South index
justifies the enhanced rate. See General Order 39. See also 28 U.S.C. § 2412(d)(2)(A); Johnson,
919 F.2d at 504. In the present action, Plaintiff’s requested rate of $156.00 per hour is authorized
by CPI-South index. Thus, this hourly rate is authorized by the EAJA, and this Court finds Plaintiff
is entitled to $156.00 per attorney hour for the hours worked in 2011 and 2012.
Further, this Court has reviewed Plaintiff’s request for 77.40 hours of attorney work during
2011 and 2012. Plaintiff has submitted an itemized bill in support of that request. ECF No. 11-5.
In his response, Defendant claims Plaintiff is only entitled to 45.90 hours of attorney work instead
of 77.40 hours of attorney work. ECF No. 14.
Upon review of Plaintiff’s fee petition, Plaintiff requests 42.40 hours for a review of the
record and 19.10 hours for preparation of his appeal brief for a total of 61.50 hours to simply brief
this case. ECF No. 11-5. This Court is not inclined to reduce Plaintiff’s request for attorney’s fees.
However, in this case, this Court agrees with Defendant’s objection and finds Plaintiff’s requested
fees are excessive. Even though the transcript was lengthy, there is no indication that this case was
exceptionally complicated. Thus, this Court reduces the amount Plaintiff requested for review of
the record and preparation of the appeal brief by 31.50 hours (from 61.50 hours to 30.0 hours). After
a reduction of 31.50 hours from 77.40, this leaves a total award of 45.90 hours at an hourly rate of
$156.00 or $7,160.40.
Defendant also objects to Plaintiff’s request for out-of-pocket expenses. ECF No. 14. Upon
review of Plaintiff’s fee petition, Plaintiff has not provided any justification to support his claim for
these expenses. Plaintiff’s invoice only states “Copy charges – pleadings to DC Court Clerk,
Opposing counsel, PACER charges.” ECF No. 11-6. Thus, this Court finds Plaintiff is not entitled
to the requested $24.69 in out-of-pocket expenses.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Ratliff.
ECF No. 14. Ratliff requires that attorney’s fees be awarded to the “prevailing party” or the litigant.
See Astrue v. Ratliff, 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 directly to Plaintiff’s attorney.
Based upon the foregoing, the Court awards Plaintiff $7,160.40 in attorney’s fees pursuant
to the EAJA, 28 U.S.C. § 2412.
ENTERED this 22nd day of August 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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