West v. Social Security Administration Commissioner
ORDER on Attorney Fees in the amount of $4,489.00. Signed by Honorable Barry A. Bryant on October 4, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 2:11-cv-02099
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Pending now before this Court is Plaintiff’s Application for Attorney Fees Under the Equal Access
to Justice Act (“EAJA”). ECF No. 11.1 With this Motion, Plaintiff requests an EAJA award of $4,489.00
Id. On October 2, 2012, Defendant responded to this Motion. ECF No. 13. 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.
Edward West (“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 June 28, 2012, this
Court reversed and remanded Plaintiff’s case pursuant to sentence four of 42 U.S.C. § 405(g). ECF Nos.
On September 20, 2012, Plaintiff filed the present Motions 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
$4,489.00, representing 26.30 hours of attorney time at an hourly rate of $170.00 and $18.00 for postage
and photocopying. Id. On October 2, 2012, Defendant responded to this Motion and objects to Plaintiff’s
The docket numbers for this case are referenced by the designation “ECF. No.”
claim for costs and to Plaintiff’s attorney’s request that the EAJA payment be made directly to him, instead
of to Plaintiff. ECF No. 13.
2. Applicable Law:
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).
In the present action, Plaintiff’s case was remanded to the SSA. ECF No. 11. Defendant does not
contest Plaintiff’s claim that he is the prevailing party, does not oppose his application for fees under the
EAJA, does not object to the hourly rate he requested, and does not dispute the number of hours expended
by counsel. ECF No. 13. 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
Plaintiff requests a total award of $4,489.00 under the EAJA. ECF Nos. 11. Plaintiff requests
these fees at a rate of $170.00 per hour for 26.30 hours of attorney work. Id. This hourly rate of $170.00
per attorney hour 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 $170.00 per hour is authorized by CPI-South index. Further, Defendant
does not object to this hourly rate. ECF No. 13. Thus, this hourly rate is authorized by the EAJA, and this
Court finds Plaintiff is entitled to $170.00 per hour of attorney work.
Further, I have reviewed counsel’s itemization of time appended to Plaintiff’s application. ECF
No. 11-1. This Court notes that Defendant has not objected to the number of hours for which counsel
seeks a fee award, and this Court finds the time asserted to be spent in the representation of Plaintiff before
the district court is reasonable.
Defendant objects to Plaintiff counsel’s request for $18.00 for reimbursement for postage and
photocopies. Such expenses are recoverable under the EAJA and we find $18.00 to be a reasonable award.
See Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir.1988).
Therefore, this Court finds that Plaintiff is entitled to an attorney’s fee award under EAJA in the
amount of $4,489.00, representing 26.30 hours of attorney time at an hourly rate of $170.00 and $18.00
for postage and photocopying expense.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Astrue v. Ratliff,
130 S.Ct. 2521, 2528 (2010). ECF No. 13. Ratliff requires that attorney’s fees be awarded to the
“prevailing party” or the litigant. See id, 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 to Plaintiff’s attorney.
Based upon the foregoing, the Court awards Plaintiff $4,489.00 pursuant to the EAJA, 28 U.S.C.
ENTERED this 4th day of October 2012
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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