Covington v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER awarding attorney fees in the amount of $3044.10. 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 March 7, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CONNIE L. COVINGTON
CIVIL NO. 11-2193
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 Nos. 15, 16. The Defendant has filed no response, and the time period
for filing a response has now closed.
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
Plaintiff, Connie Covington, appealed the Commissioner’s denial of benefits to this court. On
October 15, 2012, an Order was entered remanding the case pursuant to sentence four of 42 U.S.C. §
405(g). ECF No. 14.
On January 14, 2013, 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 $3,044.10, representing a total
of 15.90 attorney hours for work performed in 2011, 2012, and 2013 at a rate of $174.00 per hour and
3.70 paralegal hours at an hourly rate of $75.00. ECF No. 16-2. The Defendant has filed no response.
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). 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 (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 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 has filed no response
contesting Plaintiff’s claim that she is the prevailing party, opposing her application for fees under the
EAJA, and or objecting to an award of reasonable attorney fees in this case. 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 $174.00 per hour for work performed in
2011, 2012, and 2013. This hourly rate is authorized by the EAJA because counsel has submitted proof
supporting his request for a higher fee, and the rate requested does not exceed the CPI for either year.
Therefore, this Court finds that Plaintiff is entitled to an hourly rate of $174.00 per attorney hour.
Plaintiff’s counsel has also requested compensation for paralegal time at the rate of $75.00 per
hour. We find $75.00 per hour for paralegal work to be a reasonable rate. See Richlin Security Service
Company v. Chertoff, 128 S.Ct. 2007 (U.S. 2008).
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, we 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
$3,044.10, representing 15.90 attorney hours at an hourly rate of $174.00 and 3.70 paralegal hours at an
hourly rate of $75.00.
Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), fee awards are to be made payable
to the Plaintiff. Thus, to the extent Plaintiff requests that her EAJA fees be awarded to her attorney, said
request is denied. However, the award properly made payable to Plaintiff may be mailed to Plaintiff at
her 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 $3,044.10 pursuant to the EAJA, 28 U.S.C.
Dated this 7th day of March 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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