Johnson v. Social Security Administration Commissioner
ORDER granting plaintiff's 19 Motion for attorney's fees in the amount of $3871.20. Signed by Honorable Barry A. Bryant on October 3, 2012. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KENNETH JOHNSON, JR.
Civil No. 2:12-cv-02004
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Pending now before this Court is Plaintiff’s Motion for an Award of Attorney’s Fees Under
the Equal Access to Justice Act (“EAJA”). ECF No. 19. Defendant has responded to this Motion and
has no objections to the requested fees. ECF No. 21. 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.
Kenneth Johnson, 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 July
16, 2012, Plaintiff’s case was reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g).
ECF Nos. 17-18.
On September 20, 2012, Plaintiff filed the present Motion requesting an award of attorney’s
fees under the EAJA. ECF No. 19. With this Motion, Plaintiff requests an award of attorney’s fees
of $3,871.20, representing 21.30 hours of attorney work at an hourly rate of $174.00 in addition to 3.30
hours of paralegal work at an hourly rate of $50.00. Id. Defendant responded to this Motion on
October 1, 2012 and has no objections to this Motion. ECF No. 21.
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
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). See also General Order 39 (“Attorney’s Fees Under the Equal Access
to Justice Act”).
In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 17-18. Defendant
does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application
for fees under the EAJA. ECF No. 21. The Court construes the 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 $3,871.20, representing 21.30 hours of attorney work at an
hourly rate of $174.00 in addition to 3.30 hours of paralegal work at an hourly rate of $50.00. ECF
No. 19. This hourly rate of $174.00 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 per hour is authorized by CPI-South
Index. Thus, this hourly rate is authorized by the EAJA, and this Court finds Plaintiff is entitled to
$174.00 per attorney hour for the hours worked in 2011 and 2012.
Further, this Court has reviewed Plaintiff’s request for 21.30 hours of attorney work and 3.30
hours of paralegal work during 2011 and 2012. Plaintiff has submitted an itemized bill in support of
that request. ECF No. 20-1. Defendant does not object to these requested attorney’s fees. ECF No.
21. This Court has reviewed the itemized statement from Plaintiff’s attorney and finds the requested
fees are reasonable. Therefore, this Court awards Plaintiff $3,871.20 pursuant to the EAJA.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Ratliff. ECF
No. 21. Ratliff requires that attorney’s fees be awarded to the “prevailing party” or the litigant. See
Astrue v. Ratliff, 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 directly to Plaintiff’s attorney.
Based upon the foregoing, the Court awards Plaintiff $3,871.20 in attorney’s fees pursuant to
the EAJA, 28 U.S.C. § 2412.
ENTERED this 3rd day of October 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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