Perrymore v. Social Security Administration Commissioner
ORDER awarding Attorney Fees in the amount of $3019.50. Signed by Honorable Barry A. Bryant on February 27, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BUDDY JACK PERRYMORE, JR.
Civil No. 2:11-cv-02239
CAROLYN W. COLVIN
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. 14.1 With this Motion, Plaintiff requests an EAJA award
of $3,019.50. Id. On February 25, 2013, Defendant responded to this Motion. ECF No. 16. 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.
Buddy Jack Perrymore, Jr. (“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 December 20, 2012, this Court reversed and remanded Plaintiff’s case pursuant to sentence four
of 42 U.S.C. § 405(g). ECF Nos. 12,13.
On February 21, 2013, Plaintiff filed the present Motions requesting an award of attorney’s
fees under the EAJA. ECF No. 14. With this Motion, Plaintiff requests an award of attorney’s fees
of $3,019.50, representing 15.50 hours of attorney time at an hourly rate of $174.00 and 4.30 hours
of paralegal time at an hourly rate of $75.00. Id. On February 25, 2013, Defendant responded to
The docket numbers for this case are referenced by the designation “ECF. No.”
this Motion and only objects to Plaintiff’s attorney’s request that the EAJA payment be made directly
to him, instead of to Plaintiff. ECF No. 16.
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. 13. 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. 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 a total award of $3,019.50 under the EAJA. ECF No. 14. Plaintiff requests
these fees at a rate of $174.00 per attorney hour. Id. The hourly rate of $174.00 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 $174.00 is authorized by CPI-South index. Further, Defendant does not
object to this hourly rate. ECF No. 16. Thus, this hourly rate is authorized by the EAJA, and this
Court finds Plaintiff is entitled to $174.00 per hour of attorney work performed.
Further, I have reviewed counsel’s itemization of time appended to Plaintiff’s application.
ECF No. 15. 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. Thus, this Court finds that Plaintiff is entitled to an
attorney’s fee award under EAJA in the amount of $3,019.50, representing 15.50 hours of attorney
time at an hourly rate of $174.00 and 4.30 hours of paralegal time at an hourly rate of $75.00.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Astrue v.
Ratliff, 130 S.Ct. 2521, 2528 (2010). ECF No. 16. 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 $3,019.50 pursuant to the EAJA, 28
U.S.C. § 2412.
ENTERED this 27th day of February 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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