Jones v. Social Security Administration Commissioner
ORDER awarding plaintiff's counsel attorney's fee under EAJA in the amount of $3433.20. 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 Erin L. Setser on June 20, 2014. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MICHAEL L. JONES
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Michael L. Jones, appealed the Commissioner’s denial of benefits to this Court.
On February 14, 2014, a Judgment was entered remanding this matter to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 18). Plaintiff now moves for an award of
$3,433.20 in attorney’s fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter
“EAJA”), requesting compensation for 2.65 attorney hours of work performed before the Court
in 2012, at an hourly rate of $180.00; 9.55 attorney hours of work performed before the Court
in 2013, at an hourly rate of $183.00; and 1.80 attorney hours of work performed before the
Court in 2014, at an hourly rate of $186.00. In addition, Plaintiff requests compensation for
11.65 paralegal hours of work performed before the Court at an hourly rate of $75.00. (Doc. 201). Defendant has filed a response, stating that she does not oppose the requested hourly rate or
the number of hours Plaintiff’s counsel is requesting. (Doc. 21).
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
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).
Under Shalala v. Schaefer, 509 U.S. 292, 302 (1993), a social security claimant who obtains a
sentence-four judgment reversing the Commissioner's denial of benefits and remanding the case
for further proceedings is a prevailing party.
In determining a reasonable attorney’s fee, the Court will in each case consider the
following factors: time and labor required; the novelty and difficulty of questions involved; the
skill required to handle the problems presented; the preclusion of employment by the attorney
due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time
limitations imposed by the client or the circumstances; the amount involved and the results
obtained; the attorney’s experience, reputation and ability; the “undesirability” of the case; the
nature and length of the professional relationship with the client; and awards in similar cases.
Hensley v. Eckerhart, 461 U.S. 424, 430 (1983).
However, the EAJA is not designed to reimburse without limit. Pierce v. Underwood,
487 U.S. 552, 573 (1988). The Court can determine the reasonableness and accuracy of a fee
request, even in the absence of an objection by the Commissioner. Clements v. Astrue, 2009 WL
4508480 (W.D. Ark. Dec. 1, 2009); see also 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 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
Where documentation is inadequate, the Court may reduce the award
accordingly. Hensley, 461 U.S. at 433 (1983).
Plaintiff's attorney requests an award under the EAJA at an hourly rate of $180.00 for
2.65 attorney hours in 2012, $183.00 for 9.55 attorney hours in 2013; and $186.00 for 1.80
attorney hours in 2014; and an hourly rate of $75.00 for 11.65 paralegal hours, which he asserts
were devoted to the representation of Plaintiff in this Court. The party seeking attorney fees bears
the burden of proving that the claimed fees are reasonable. Hensley, 461 U.S. at 437. Attorney
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).
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 [the maximum statutory hourly rate],” such as a copy
of the Consumer Price Index (CPI). Plaintiff’s counsel submitted a CPI-South-Urban Index in
support of his requested hourly rate. The Court finds that the CPI -South index supports an
award based upon an attorney hourly rate of $180.00 for 2012, $183.00 for 2013, and $186.00
for 2014.2 See Johnson, 919 F.2d at 505.
With respect to the number of hours Plaintiff’s counsel seeks, although much of the
paralegal time is somewhat duplicative of the attorney time spent, the Court recognizes that
Plaintiff’s counsel is blind, and has been handling social security cases for many years. In
Stockton v. Shalala, 36 F.3d 49 (8th Cir. 1994), the Eighth Circuit Court of Appeals recognized
that the attorney handling the case was blind, and that there will be some duplication of time
between the attorney and paralegal, and that under the unique circumstances of that case, the full
amount of the requested paralegal services was justified. Id. at 50. The Court finds that the
amount of time requested by Plaintiff’s counsel for his work, as well as his paralegal’s work, is
reasonable under the unique circumstances of this case.
In his response, Defendant asks the Court to designate Plaintiff as payee of the EAJA
award, and not Plaintiff’s counsel. Based upon the holding in Astrue v. Ratliff, 130 S.Ct. 2521
(2010), the EAJA award should be paid directly to Plaintiff.
Based upon the foregoing, the Court finds that Plaintiff ‘s counsel should be awarded an
attorney’s fee under the EAJA for: 2.65 attorney hours in 2012, 9.55 attorney hours in 2013, and
1.80 attorney hours in 2014, at an hourly rate of $180.00, $183.00, and $186.00 respectively,
and paralegal fees for 11.65 paralegal hours at an hourly rate of $75.00, for a total award of
$3,433.20. This amount should be paid in addition to, and not out of, any past due benefits
which Plaintiff may be awarded in the future.
Per Amended General Order 39, the allowable rate for each year is as follows, and for simplicity sake, the figure
is rounded to the nearest dollar:
2012 - 219.469 x 125 divided by 152.4 (March 1996 CPI-South)= $180.01 hour - $180.00
2013 - 223.109 x 125 divided by 152.4 (March 1996 CPI-South)= $182.99/hour - $183.00
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI-South) = $186.25 hour - $186.00
The parties are 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.
DATED this 20th day of June, 2014.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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