Fleming v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER on Attorney Fees in the amount of $3,389.49. Further, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable James R. Marschewski on April 3, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TIMOTHY S. FLEMING
CIVIL NO. 11-2155
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. 14. 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, Timothy Fleming, appealed the Commissioner’s denial of benefits to this court.
On January 12, 2012, an Order was entered remanding the case pursuant to sentence four of 42
U.S.C. § 405(g). ECF No. 13.
On March 15, 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 $3, 492.69 representing
a total of 19.30 attorney hours for work performed in 2011 and 2012 at a rate of $180.00 per hour
and $18.69 in expenses. ECF No. 14-1. On March 29, 2012, the defendant filed a response
objecting to the hourly rate requested by Plaintiff and Plaintiff’s request that his EAJA payment
be made payable to his attorney. ECF No. 16.
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). The
Commissioner filed the Motion to Remand initiating the remand in this case, and has voiced no
objection to an award of fees in this matter. 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. Defendant does not contest
Plaintiff’s claim that he is the prevailing party, does not oppose his application for fees under the
EAJA, and does not object to an award of reasonable attorney fees in this case. ECF No. 16. 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 $180.00 per hour for work
performed in 2011 and 2012. While an increased hourly rate is authorized as long as the CPI is
submitted, this court will not approve the hourly rate requested. See 28 U.S.C. § 2412(d)(2)(A);
Johnson, 919 F.2d at 504. In the present action, Plaintiff’s requested rate exceeds the hourly rate
authorized by the CPI-South index. The hourly rate authorized by the CPI-South for 2011 is
$174.00, while the rate authorized for 2012 is $180.00. Therefore, Plaintiff will be awarded
$174.00 per hour for work performed in 2011 and $180.00 per hour for work performed in 2012.
In addition, we have reviewed counsel’s itemization of time appended to Plaintiff’s
application. ECF No. 16-1. The Defendant has not objected to the number of hours for which
counsel seeks a fee award. Accordingly, I find the time asserted to be spent in the representation
of Plaintiff before the district court is reasonable. Plaintiff is entitled to an attorney’s fee award
under EAJA in the amount of $3,389.49, representing 17.20 attorney hours in 2011 at a hourly rate
of $174.00, 2.10 attorney hours in 2012 at an hourly rate of $180.00, and $18.69 in expenses.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Astrue
v. Ratliff, 130 S.Ct. 2521, 2528 (2010). ECF No. 14. 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, an award properly made
payable to Plaintiff may be mailed to Plaintiff at his attorney’s address.
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 $3, 389.49 pursuant to the EAJA, 28
U.S.C. § 2412.
Dated this 3rd day of April 2012.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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