Jones v. Social Security Administration Commissioner

Filing 15

ORDER on Attorney Fees in the amount of $1,393.85. Signed by Honorable Barry A. Bryant on July 12, 2012. (lw)

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

KENNETH C. JONES
vs.

PLAINTIFF
Civil No. 3:10-cv-03099

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

ORDER
Pending now before this Court is Plaintiff’s Application for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). ECF No. 12.1 With this Motion, Plaintiff requests an EAJA award
of $1,427.60. Id. On May 18, 2012, Defendant responded to this Motion and objects to the number
of hours claimed by Plaintiff counsel’s paralegal. ECF No. 14. 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. 5. Pursuant to this authority, the Court issues this Order.
1. Background:
Kenneth Jones (“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 6,
2012, this Court reversed and remanded Plaintiff’s case pursuant to sentence four of 42 U.S.C. §
405(g). ECF Nos. 10, 11.
On May 7, 2012 Plaintiff filed the present Motion requesting an award of attorney’s fees
under the EAJA. ECF No. 12. With this Motion, Plaintiff requests an award of attorney’s fees of

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The docket numbers for this case are referenced by the designation “ECF. No.”

$1,427.60, representing 5.15 hours of attorney time at an hourly rate of $155.00 and 8.15 hours of
paralegal time at an hourly rate of $75.00, and postage of $21.85. Id. On May 18, 2012, Defendant
responded to this Motion and objects to claimed paralegal hours. ECF No. 14.
2. Applicable Law:
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.”
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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).
3. Discussion:
In the present action, Plaintiff’s case was remanded to the SSA. ECF No. 11. Defendant
does not contest Plaintiff’s claim that he is the prevailing party, does not oppose his application for
fees under the EAJA, and does not object to the hourly rate he requested. ECF No. 14. Defendant
does dispute the number of hours expended by Plaintiff counsel’s paralegal. ECF No. 14. The Court
construes this 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 $1,427.60 under the EAJA. ECF No. 12. Plaintiff requests
these attorney fees at a rate of $155.00 per hour for 5.15 hours of attorney work. Id. This hourly rate
of $155.00 per attorney hour is authorized by the EAJA as long as a CPI is submitted. See 28 U.S.C.
§ 2412(d)(2)(A); Johnson, 919 F.2d at 504. In the present action, Plaintiff submitted a CPI. ECF
No. 13. Further, Defendant does not object to this hourly rate. ECF No. 14. Therefore, this hourly
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rate is authorized by the EAJA, and this Court finds that Plaintiff is entitled to an hourly rate of
$155.00 per attorney hour.
Further, I have reviewed counsel’s itemization of time appended to Plaintiff’s application.
ECF No. 13. Defendant has objected to some of the hours for which counsel seeks a fee award for
work performed by his paralegal. ECF No. 14. Specifically, Defendant objects to Plaintiff counsel’s
request for compensation for 15 minutes his paralegal spent receiving and reviewing the Order
granting the IFP petition, 15 minutes his paralegal spent receiving and reviewing a file-marked copy
of the summons and complaint, and 15 minutes his paralegal spent receiving and reviewing the
briefing schedule. Id. Defendant argues these requests are excessive considering the IFP Order and
briefing schedule each are only one page in length. Further, the summons and complaint are
documents the paralegal previously prepared, therefore, the paralegal should be familiar with the
contents and should not require 15 minutes to review. Id. This Court agrees that the amount of time
requested for these tasks is excessive and time requested for performing these tasks is reduced to a
total of 15 minutes.
Defendant also objects to Plaintiff’s counsel request for compensation for four (4) hours for
his paralegal to prepare the EAJA motion and attachments. ECF No. 14. Defendant argues this
request of hours is excessive and should be reduced to three (3) hours. Id. This Court does not agree
that four (4) hours of requested time for preparation of the EAJA and supporting documents is
excessive.
Thus, this Court finds that Plaintiff is entitled to an attorney’s fee award under EAJA in the
amount of $1,393.85 representing 5.15 hours of attorney time at an hourly rate of $155.00 and 7.65
hours of paralegal time at an hourly rate of $75.00 and postage of $21.85.

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4. Conclusion:
Based upon the foregoing, the Court awards Plaintiff $1,393.85 pursuant to the EAJA, 28
U.S.C. § 2412.
ENTERED this 12th day of July 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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