Falconburg v. Social Security Administration Commissioner

Filing 17

ORDER awarding plaintiff's attorney fees under the EAJA in the amount of $1,863.82 and 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 this award should be paid directly to plaintiff. Signed by Honorable James R. Marschewski on August 5, 2011. (rw)

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

JOSEPH DEAN FALCONBURG
v.

PLAINTIFF
CIVIL NO. 10-3077

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT
ORDER

Plaintiff, Joseph Dean Falconburg, appealed the Commissioner’s denial of benefits to this
court. ECF No. 1. On January 6, 2011, a judgment was entered remanding Plaintiff’s case to
the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 12. Plaintiff now
moves for a total of $1,881.85 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 10.65 attorney hours at a rate of
$175.05 and $17.57 in costs. ECF Nos. 13, 14. Defendant filed a response objecting to the
hourly fee requested and the method of payment.1 ECF No. 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
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). After
reviewing the file, we find Plaintiff is a prevailing party in this matter. 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

1

On June 14, 2010, the Supreme Court held that an EAJA fee award is payable to the prevailing
litigant, not the prevailing litigant’s attorney. Astrue v. Ratliff, 130 S.Ct. 2521, 2252-2253 (2010). Therefore,
any EAJA fee awarded by this court should be payable directly to Plaintiff.

AO72A
(Rev. 8/82)

proceedings is a prevailing party.
An award of attorney’s fees under the EAJA is appropriate even though at the conclusion
of the case, Plaintiff’s attorney may be authorized to charge and 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. Gisbrecht v. Barnhart,
535 U.S. 789, 796, 122 S.Ct. 1817, 1822, 152 L.Ed.2d 996 (2002), citing Pub.L. 99-80, § 3, 99
Stat. 186 (1985).
To permit a fee award under the EAJA, assuming, of course, that the necessary
standard is met, in addition to that allowed by the district court out of a
claimant’s past-due benefits does no more than reimburse the claimant for his or
her expenses and results in no windfall for the attorney.
Meyers v. Heckler, 625 F.Supp. 228, 231 (S.D.Ohio 1985). Furthermore, awarding fees under
both acts facilitates the purpose of the EAJA, which is to shift to the United States the prevailing
party’s litigation expenses incurred while contesting unreasonable government action. Id. See
also Cornella v. Schweiker, 728 F.2d 978 (8th Cir.1984).
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
the work.” Id. Where documentation is inadequate, the court may reduce the award accordingly.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

-2-

AO72A
(Rev. 8/82)

In determining a reasonable attorney’s fee, the court will in each case consider the
following factors: time and labor required; the difficulty of questions involved; the skill required
to handle the problems presented; the attorney’s experience, ability, and reputation; the benefits
resulting to the client from the services; the customary fee for similar services; the contingency
or certainty of compensation; the results obtained; and the amount involved. Allen v. Heckler,
588 F.Supp. 1247 (W.D.N.Y. 1984).
However, the EAJA is not designed to reimburse without limit. Pierce v. Underwood,
487 U.S. 552, 573 (1988). The district court is “in the best position to evaluate counsel’s
services and fee request, particularly when the court has had the opportunity to observe firsthand
counsel’s representation on the substantive aspects of the disability claim.” Hickey v. Secretary
of HHS, 923 F.2d 585, 586 (8th Cir. 1991) (quoting Cotter v. Bowen, 879 F.2d 359, 361 (8th Cir.
1989)). The court can determine the reasonableness and accuracy of a fee request, even in the
absence of an objection by the Commissioner. See 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 Contract with America Advancement Act of 1996, passed on March 29, 1996,
amended the EAJA and increased the statutory ceiling for the EAJA fee awards from $75.00 to
$125.00 per hour. See 28 U.S.C. § 2 412(d)(2)(A). Attorney’s 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). The decision to increase
the hourly rate is not automatic and remains at the discretion of the district court. McNulty v.
-3-

AO72A
(Rev. 8/82)

Sullivan, 886 F.2d 1074 (8th Cir. 1989). 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 $75.00 an
hour,” such as a copy of the Consumer Price Index (“CPI”). In this instance, counsel requests
attorney’s fees at an hourly rate of $175.05. ECF No. 14, Ex. 2. Counsel attached a copy of the
CPI as evidence that this rate is a proper reflection of the cost of living. ECF No. 14, Ex. 2. The
court finds this rate to be reasonable, but will round to the nearest whole dollar.2 Accordingly,
the undersigned finds that counsel is entitled to an hourly rate of $175.00.
Attorney Hours
The court next addresses the number of hours Plaintiff’s counsel claims he spent working
on this case. Counsel requests compensation for .25 hours for receiving the file-marked copies
of the complaint and summons and signing the letters of service. This court concludes that it
should not have taken an attorney experienced in handling social security cases this amount of
time to perform this task. Bowman v. Secretary of H.H.S., 744 F.Supp. 898 (E.D.Ark. 1989).
Moreover, preparing the letters of service is a clerical task. See Granville House, Inc. v.
Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987) (work which could have been completed
by support staff is not compensable under the EAJA). As such, the court will only grant counsel
the time required to review and sign the letters of service. The court grants counsel .15 hours
for reviewing and signing the letters of service. Accordingly, the undersigned deducts .10 hours

2

In accordance with General Order No. 39, the court has calculated the cost of living based on the
CPI-U for the South. The undersigned believes that routine application of this standard will result in consistent
hourly fee awards in the W estern District of Arkansas. See Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.
1990).

-4-

AO72A
(Rev. 8/82)

from the total number of compensable hours.
Counsel also requests compensation for a total of 6.75 hours for reviewing the transcript,
researching the law, and drafting the appeal brief. The court finds that the time requested is
reasonable and will award the full 6.75 brief hours.
Finally, counsel seeks reimbursement of $17.57 for expenses incurred with regard to
postage. Such expenses are recoverable under the EAJA and the undersigned finds $17.57 to be
a reasonable award. See Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988).
Based on the above, the court awards Plaintiff's attorney fees under the EAJA for 10.55
(10.65-.10) attorney hours at the rate of $175.00 per hour and $17.57 in expenses, for a total
attorney's fee award of $1,863.82. 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, this award should be
paid directly to Plaintiff. See Astrue, 130 S.Ct. at 2529.
The parties are reminded that the award 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.
IT IS SO ORDERED this 5th day of August 2011.

/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE

-5-

AO72A
(Rev. 8/82)