McBee v. Social Security Administration Commissioner
ORDER awarding plaintiff attorney's fees in the amount of $2940.30. Signed by Honorable Barry A. Bryant on May 20, 2014. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
FREDDY CLINTON MCBEE
Civil No. 2:13-cv-02060
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Pending now before this Court is Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal
Access to Justice Act (“EAJA”). ECF No. 16. Defendant has responded to this Motion and raises
no objections to Plaintiff’s Motion.1 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. 6.
Pursuant to this authority, the Court issues this Order.
Freddy Clinton McBee (“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
February 11, 2014, Plaintiff’s case was reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g). ECF Nos. 14-15.
On April 25, 2014, Plaintiff filed the present Motion requesting an award of attorney’s fees
under EAJA. ECF No. 16. With this Motion, Plaintiff requests an award of attorney’s fees of
$2,940.30. Id. This amount represents 14.70 attorney hours at an hourly rate of $174.00 for 2013
and 2014 and 5.10 paralegal hours at an hourly rate of $75.00 for 2013 and 2014. Id. Defendant
Defendant only requests the attorney’s fees be made payable to Plaintiff, not Plaintiff’s
counsel. ECF No. 18.
responded to this Motion on May 9, 2014. ECF No. 18. In this response, Defendant raises no
objections to Plaintiff’s Motion. Id.
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). 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. 14-15. 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. 18. 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 of $2,940.30. ECF No. 16. This amount represents 14.70
attorney hours at an hourly rate of $174.00 for 2013 and 2014 and 5.10 paralegal hours at an hourly
rate of $75.00 for 2013 and 2014. Id. This requested attorney hourly rate is authorized by the EAJA
as long as the CPI-South Index justifies this 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 has requested
$174.00 per hour for attorney work performed in 2013 and 2014. ECF No. 16. Based upon the CPI-
South Index, this hourly rate is authorized by the CPI-South Index. Accordingly, the Court awards
this hourly rate.
Further, Plaintiff has requested 14.70 attorney hours for work performed in 2013 and 2014.
ECF No. 16. Plaintiff has submitted an itemized bill in support of that request. Id. Defendant has
raised no objections to these requested hours. ECF No. 18. Having reviewed Plaintiff’s itemized
bill, the Court finds it is reasonable and should be granted. Defendant has also raised no objections
to Plaintiff’s requested paralegal hours and paralegal rate. ECF No. 18. Accordingly, the Court also
awards that amount.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Astrue v.
Ratliff, 560 U.S. 586, 130 S.Ct. 2521 (2010). ECF No. 18. Ratliff requires that attorney’s fees be
awarded to the “prevailing party” or the litigant. See Id, 130 S.Ct. at 2528. 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
Based upon the foregoing, the Court awards Plaintiff $2,940.30 in attorney’s fees pursuant
to the EAJA, 28 U.S.C. § 2412. This amount includes 14.70 attorney hours at an hourly rate of
$174.00 for 2013 and 2014 and 5.10 paralegal hours at an hourly rate of $75.00 for 2013 and 2014.
ENTERED this 20th day of May 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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