Pham v. Social Security Administration Commissioner
ORDER granting 16 Motion for Attorney Fees; Plaintiff is awarded Attorney fees in the amount of $4,316.90 pursuant to the EAJA, 28U.S.C. § 2412. Signed by Honorable Barry A. Bryant on April 21, 2016. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DUNG V. PHAM
Civil No. 2:15-cv-02092
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 responded to this Motion and raised some
objections to Plaintiff’s Motion. ECF No. 19. Subsequently, Plaintiff agreed with those objections
(ECF No. 20), and the Court will consider this Motion with those changes.
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
On May 14, 2015, Dung V. Pham (“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 February 1, 2016, Plaintiff’s case was reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g). ECF Nos. 14-15.
On April 5, 2016, Plaintiff filed his Motion for Attorney’s Fees. ECF Nos. 16, 20. With this
Motion, Plaintiff requests an award of attorney’s fees of $4,316.90. Id. This amount represents
21.20 attorney hours at an hourly rate of $187.00 for work performed in 2015 and 2016 in addition
to 4.70 paralegal hours at an hourly rate of $75.00. Id. Defendant has no objections to this requested
amount. ECF No. 19.
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. 19. 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 $4,316.90. ECF Nos. 16, 20. This amount includes 21.20
attorney hours for work performed in 2015 and 2016 at an hourly rate of $187.00. Id. This 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, the Court finds the CPI-South Index authorizes $187.00 for both 2015 and 2016. Thus, the
Court awards that hourly rate.
Further, Plaintiff has requested 21.20 attorney hours for work performed in 2015 and 2016.
ECF Nos. 16, 20. Defendant has raised no objections to these requested hours. ECF No. 19. Having
reviewed Plaintiff’s itemized bill, the Court finds it is reasonable and should be granted. Further,
Defendant raises no objections to Plaintiff’s requested paralegal hours or paralegal rate. ECF No.
19. Thus, the Court also awards those hours.
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. 19. 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 $4,316.90 pursuant to the EAJA, 28
U.S.C. § 2412. This amount represents 21.20 hours of attorney work from 2015 and 2016 at an
hourly rate of $187.00 in addition to 4.70 paralegal hours at an hourly rate of $75.00.
ENTERED this 21st day of April 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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