McCormick v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER awarding plaintiff $2757.90 pursuant to the EAJA and granting 16 Motion for Attorney Fees. Signed by Honorable James R. Marschewski on August 8, 2013. (rw)
McCormick v. Social Security Administration Commissioner
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CIVIL NO. 12-2031
CAROLYN W. COLVIN1, 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. 16. The Defendant has filed a response to said
motion, voicing no objection to the hourly rate or number of hours requested. ECF No. 18. 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.
Plaintiff, Brenda McCormick, appealed the Commissioner’s denial of benefits to this
court. On February 13, 2013, an Order was entered remanding the case pursuant to sentence
four of 42 U.S.C. § 405(g). ECF No. 15.
On, April 26, 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 $2757.90, representing
a total of 14.60 attorney hours for work performed in 2012 and 2013 at a rate of $174.00 per hour
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner
Michael J. Astrue as the defendant in this suit.
and 2.90 paralegal hours at an hourly rate of $75.00. ECF No. 17-3. On May 7, 2013, the
Defendant filed a response voicing no objections to Plaintiff’s request for fees. ECF No. 18.
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 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. 18. 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
Plaintiff requests that attorney fees be paid at a rate of $174.00 per hour for work
performed in 2012 and 2013. This hourly rate is authorized by the EAJA because 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 has also requested compensation for paralegal time at the rate of $75.00 per
hour. Again, Defendant does not object to this hourly rate. ECF No. 17. Accordingly, 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. 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 is reasonable. Plaintiff is entitled to an
attorney’s fee award under EAJA in the amount of $2,757.90, representing 14.60 attorney hours
in 2012 and 2013 at a hourly rate of $174.00 and 2.90 paralegal hours at an hourly rate of $75.00.
Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA fee award should
be made payable to Plaintiff. However, as a matter of practice, an EAJA fee made payable to
Plaintiff may properly be mailed to Plaintiff’s counsel.
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 $2,757.90 pursuant to the EAJA,
28 U.S.C. § 2412.
Dated this 8th day of August 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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