Byrum v. Social Security Administration Commissioner
ORDER awarding Attorney Fees in the amount of $2,508.65. Signed by Honorable P. K. Holmes, III on March 2, 2016. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JAMES A. BYRUM
Civil No. 2:15-cv-02068
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Pending now before the 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 has raised no objections to this Motion. ECF No. 18. This Motion is now ripe for
On April 7, 2015, James A. Byrum (“Plaintiff”) appealed to the Court from the Secretary
of the Social Security Administration’s (“SSA”) denial of his request for disability benefits.
ECF No. 1. On November 17, 2015, Plaintiff’s case was reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g). ECF Nos. 14-15.
On February 15, 2016, Plaintiff filed his Motion for Attorney’s Fees. ECF No. 16. With
this Motion, Plaintiff requests an award of attorney’s fees of $2,508.65. Id. This amount
represents 8.85 hours of attorney work at an hourly rate of $187.00 for work performed in 2015,
1.15 hours of attorney work at an hourly rate of $188.00 for work performed in 2016, and 8.5
hours of paralegal work at an hourly rate of $75.00. Id. Defendant has responded to this Motion
and has raised no objections to it. ECF No. 18.
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.
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 $2,508.65. ECF No. 16. This amount represents 8.85
hours of attorney work at an hourly rate of $187.00 for work performed in 2015, 1.15 hours of
attorney work at an hourly rate of $188.00 for work performed in 2016, and 8.5 hours of
paralegal work at an hourly rate of $75.00. Id. These attorney hourly rates are authorized by the
EAJA as long as the CPI-South Index justifies these enhanced rates. See General Order 39. See
also 28 U.S.C. § 2412(d)(2)(A); Johnson, 919 F.2d at 504. In the present action, the Court finds
the CPI-South Index authorizes $187.00 for 2015 and authorizes $188.00 for 2016. Thus, the
Court awards these hourly rates.
Further, Plaintiff has requested 8.85 attorney hours for work performed in 2015 and 1.15
attorney hours for work performed in 2016. ECF No. 16. 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. Thus, the Court finds those fees are reasonable and awards
the amount Plaintiff requested for attorney’s fees. Further, Defendant has no objections to
Plaintiff’s requested paralegal hours and paralegal rate. ECF No. 18. Thus, 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. 16. 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
Based upon the foregoing, the Court awards Plaintiff $2,508.65 pursuant to the EAJA, 28
U.S.C. § 2412. This amount represents 8.85 hours of attorney work at an hourly rate of $187.00
for work performed in 2015, 1.15 hours of attorney work at an hourly rate of $188.00 for work
performed in 2016, and 8.5 hours of paralegal work at an hourly rate of $75.00.
ENTERED this 2nd day of March 2016.
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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