Jones v. Social Security Administration Commissioner
ORDER on Attorney Fees in the amount of $3,465.30. Signed by Honorable James R. Marschewski on January 28, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Pending now before this Court is Plaintiff’s Amended Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). ECF No. 17. The Defendant has filed a response. ECF No. 20.
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. 3. Pursuant to this authority, the Court issues this
Plaintiff appealed the Commissioner’s denial of benefits to this court. On October 17, 2012,
judgment was entered remanding plaintiff's case to the Commissioner pursuant to sentence four of 42 U.S.C.
§ 405(g). ECF No. 10. On October 24, 2012, Plaintiff prematurely filed a motion for attorney’s fees and
costs under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter “EAJA”). ECF No. 11. Upon
objection by the Defendant, said motion was denied. ECF No. 15, 16. On December 20, 2012, Plaintiff filed
an amended motion for EAJA requesting compensation for 18.64 attorney hours work before the court at a
rate of $165.00 per hour and $411.00 in expenses for a total requested award of $3,487.10. ECF No. 17.
The defendant has filed a response voicing no objections to Plaintiff’s motion. ECF No. 20.
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.
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. ECF No. 20. 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 $165.00 per hour for work performed in 2011
and 2012. 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 $165.00 per attorney hour.
In addition, we have reviewed counsel’s itemization of time appended to Plaintiff’s application. ECF
No. 17-2. 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
In addition to attorney hours, Plaintiff also seeks reimbursement for $411.50 for certified mail
expenses incurred in connection with filing the case in federal court, service of process, and copying fees.
We do note Plaintiff’s failure to properly distinguish between expenses and costs. And, while we do find
that the court filing fee and the postage expenses are compensable under the EAJA, we do not find copying
costs to be compensable. The EAJA permits an award of costs against the United States “except as otherwise
specifically provided by statute.” 28 U. S. C. § 2412(a). And, the statute permitting filing in forma pauperis
specifically bars an award of costs against the United States. See 28 U. S. C. § 1915(f)(1); see also Jones
v. Barnhart, 2004 WL 2297857 (E. D. Ark. 2004); Maida v. Callahan, 148 F.3d 190, 193 (2nd Cir. 1998).
Therefore, when a Plaintiff proceeds on an in forma pauperis basis, the United States is not liable for costs
which would otherwise be taxable under 28 U. S. C. § 1920. See U. S. C. § 1915(f)(1). Copying costs are
specifically enumerated in § 1920. Accordingly, Plaintiff is entitled to only $389.70 in reimbursement for
the filing fee and postage.
Plaintiff is entitled to an attorney’s fee award under EAJA in the amount of $3,465.30, representing
18.64 attorney hours in 2011 and 2012 at a hourly rate of $165.00 and $389.70 in expenses.
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 his attorney, said request
is denied. However, the award properly made payable to Plaintiff may be mailed to Plaintiff at his attorney’s
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 $3,465.30 pursuant to the EAJA, 28 U.S.C. §
Dated this 28th day of January 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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