Rusie v. Social Security Administration Commissioner

Filing 16

ORDER granting 10 Motion for Attorney Fees in the amount of $2,256.25 plus the $350.00 filing fee costs. This amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future. Signed by Honorable Erin L. Setser on May 26, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

LEE RUSIE

V.

PLAINTIFF

NO. 09-3083

MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration

DEFENDANT

ORDER
Plaintiff, Lee Rusie, appealed the Commissioner’s denial of benefits to this court. On
January 3, 2011, a judgment was entered remanding Plaintiff’s case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 9). Plaintiff now moves for an award of
$ 3,750.00 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice Act
(hereinafter “EAJA”), requesting compensation for 27.2 attorney hours of work before the court
at an hourly rate of $125.00. (Doc. 10). Defendant has filed a response, stating that it does not
object to an attorney’s fees award of $3,400 plus the $350.00 filing fee, but requests that such
fees should be payable to the Plaintiff as the prevailing litigant. (Doc. 14). Plaintiff’s counsel
filed a reply, stating that the award should be paid to Plaintiff’s counsel, since Plaintiff assigned
the EAJA fee to him. (Doc. 15).
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
-1-

AO72A
(Rev. 8/82)

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. After reviewing the file, the court finds that
Plaintiff is a prevailing party in this matter.
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
-2-

AO72A
(Rev. 8/82)

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, 461 U.S. at 433 (1983).
Plaintiff’s attorney requests an award under the EAJA for 27.2 hours of work performed
at an hourly rate of $125.00 - the maximum statutory rate under § 2412(d)(2)(A), which will be
allowed.
The Court will next address the number of hours Plaintiff’s counsel has alleged he spent
in this matter. Plaintiff’s counsel seeks 3.60 hours for work done prior to the filing of the
complaint in this matter. Plaintiff’s counsel is an experienced social security attorney and these
activities should not have taken more than 2 hours. The amount of 1.60 hours will be deducted.
Plaintiff’s counsel seeks .20 hours inputting scheduling order deadlines on the calendar
and reminders in the case management system and .10 hours to electronically file Plaintiff’s
brief. These activities are clerical in nature and not compensable under the EAJA. Granville
House, Inc. V. Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987). The amount of .30 hours
will therefore be deducted.
Plaintiff’s counsel requests a total of 15 hours for various activities related to the
preparation of the appeal brief. The transcript in this matter was 314 pages in length, and there
were no unique issues involved. Plaintiff’s counsel is experienced in social security matters, and
this should not have taken him more than 10 hours. The amount of 5 hours will therefore be
deducted.
-3-

AO72A
(Rev. 8/82)

Plaintiff’s counsel requests 2 hours for reading and reviewing Defendant’s 10 page appeal
brief. This should not have taken Plaintiff’s counsel more than 1 hour. The amount of 1 hour
will be deducted.
Plaintiff’s counsel seeks .50 hours to read and review the undersigned’s 6 page
Memorandum Opinion and 1 page Judgment. This should have taken no more than .25 hours.
The amount of .25 hours will be deducted.
Plaintiff’s counsel seeks 2.50 hours to draft the motion for attorney’s fees, affidavit and
assignment, and affidavit and memorandum. This should have taken no more than 1.50 hours.
The amount of 1 hour will be deducted.
Plaintiff’s counsel requests that the Court direct payment of the EAJA award directly to
Plaintiff’s counsel and not to Plaintiff. Plaintiff’s counsel argues that the EAJA award should
be payable directly to him based on Plaintiff’s assignment of his interest in any such award of
attorney’s fees and expenses. (Doc.15).
Defendant argues that on June 14, 2010, the United States Supreme Court held that fee
awards under the EAJA are payable to the party litigant, not the party’s attorney. See Astrue v.
Ratliff, 130 S.Ct. 2521 (2010). Defendant also argues that the purported assignment between
Plaintiff’s counsel and Plaintiff is invalid pursuant to the Anti-Assignment Act, 31 U.S.C. §
3727(b).1 Nonetheless, Defendant agrees to waive strict compliance with the Anti-Assignment
1

The Anti-Assignment Act governs, among other things, a “transfer or assignment of
any part of a claim against the United States Government[.]” 31 U.S.C. § 3727(a)(1). The
Act establishes several technical requirements for a valid assignment:
An assignment may be made only after a claim is allowed, the amount of the
claim is decided, and a warrant for payment of the claim has been issued. The
assignment shall specify the warrant, must be made freely, and must be attested
-4-

AO72A
(Rev. 8/82)

Act only if the Court issues the Order for the EAJA award to be payable to Plaintiff, and the
Defendant determines that Plaintiff does not owe a debt to the United States. Defendant states
once the Order is entered awarding a claimant attorney’s fees under the EAJA, the Defendant
will contact the Treasury Department to determine if the claimant owes the government a debt
that is subject to administrative offset. If Plaintiff does not owe a debt when the Defendant
effectuates the Court’s order awarding EAJA fees, the Defendant will waive the requirements
of the Anti-Assignment Act and honor the agreement between Plaintiff and his attorney by
paying the EAJA award directly to Plaintiff’s counsel. However, if Plaintiff does owe a debt,
the Defendant will not waive the Anti-Assignment Act and will pay the EAJA award to Plaintiff,
thus subjecting the award to offset.
In the present case, whether Plaintiff owes a debt to the government is unknown to the
Court, and the Court is hesitant to take on the task of determining whether an offsetting
qualifying debt exists. Therefore, this Court, like other courts have done throughout the circuits
since the determination in Ratliff, finds that Defendant’s proposal addressed above will best
serve all parties of interest. See Johnson v. Astrue, 2011 WL 1298035 * 2 (E.D.Ark. April 4,
2011) (approving the Commissioner’s proposal to decide whether to waive compliance with the
Anti-Assignment Act and to pay Plaintiff’s counsel directly only after an order is entered

to by 2 witnesses. The person making the assignment shall acknowledge it before
an official who may acknowledge a deed, and the official shall certify the
assignment. The certificate shall state that the official completely explained the
assignment when it was acknowledged. An assignment under this subsection is
valid for any purpose.
31 U.S.C. § 3727(b).
-5-

AO72A
(Rev. 8/82)

awarding EAJA attorney’s fees directly to the claimant and the Commissioner determines the
claimant does not owe the government a debt); Kelley v. Astrue, 2010 WL 3636145 (E.D.Ky.
Sep.14, 2010) (unpublished decision) (approving of Commissioner's proposal to decide whether
to waive compliance with the Anti–Assignment Act and to pay the claimant's attorney directly
only after an order is entered awarding EAJA attorney's fees directly to the claimant—“the Court
believes the best practice is to award the EAJA fees directly to Plaintiff. The Court will not
engage in determining whether Plaintiff owes a debt to the government. Instead, the Court will
leave it to the discretion of the Commissioner whether to honor Plaintiff's assignment of her
EAJA fees”); Calderon v. Astrue, 2010 WL 4295583 (E.D. Cal. Oct. 22, 2010) (approving
Commissioner's proposal and awarding EAJA attorney's fees to the claimant—“Defendant ...
seems to be content to permit payment to Plaintiff's counsel if Plaintiff does not have any
qualifying government debt pursuant to government's discretionary waiver of the requirements
of the Anti–Assignment Act. This Court finds the government's position to be reasonable and
will therefore permit payment to Plaintiff's counsel provided Plaintiff has no government debt
that requires offset”). Accordingly, the EAJA award should be paid directly to Plaintiff.
Based upon the foregoing, the Court finds that Plaintiff is entitled to an attorney’s fee
award under the EAJA for: 18.05 hours ( 27.2 hours minus 9.15 hours) at an hourly rate of
$125.00, for a total attorney’s fee award of $2,256.25, plus the $350.00 filing fee cost. This
amount should be paid in addition to, and not out of, any past due benefits which Plaintiff may
be awarded in the future.
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
-6-

AO72A
(Rev. 8/82)

double recovery by counsel for the Plaintiff.
IT IS SO ORDERED AND ADJUDGED this 26th day of May, 2011.

/s/ Erin L. etser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

-7-

AO72A
(Rev. 8/82)