Pentecost v. Social Security Administration Commissioner
ORDER on Attorney Fees in the amount of $1,233.10. 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, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable James R. Marschewski on March 26, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 3:11-cv-03088-JRM
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
ORDER ON MOTION FOR ATTORNEY’S FEES
Plaintiff, Diane Pentecost, appealed the Commissioner’s denial of benefits to this Court.
ECF No. 1.
On December 6, 2012, the undersigned remanded Plaintiff’s case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF Nos. 10-11. Plaintiff now
moves for a total of $1,251.85 in attorney’s fees under 28 U.S.C. § 2412, the Equal Access to
Justice Act (“EAJA”), requesting compensation for 6.00 attorney hours at an hourly rate of
$155.00 for work performed in 2011 and 2012, 3.75 paralegal hours at an hourly rate of $75.00,
and $21.85 in costs. ECF Nos. 12-13. The Commissioner filed a timely response, objecting to:
(a) Plaintiff’s characterization of postage fees as costs; and (b) the method of payment. ECF No.
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
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.
Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for
Commissioner Michael J. Astrue as the defendant in this suit.
the government’s denial of benefits. Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986). After
reviewing the case, the undersigned finds that 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 sentencefour judgment reversing the Commissioner’s denial of benefits and remanding the case for
further 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).
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). 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.
Sullivan, 886 F.2d 1074 (8th Cir. 1989).
Counsel requests attorney’s fees at an hourly rate of $155.00 for work performed in 2011
and 2012. ECF No. 13, Ex. 11. Counsel’s requested rate is consistent with Amended General
Order 39, which sets forth the maximum hourly rate for EAJA fees in the Western District of
Arkansas. As such, the undersigned finds counsel is entitled to $155.00 for work performed in
2011 and 2012.
The court next addresses the number of hours counsel spent working on this case.
Counsel requests a total of 6.00 attorney hours for work performed in 2011 and 2012. ECF No.
13, Ex. 11. The undersigned finds counsel’s requested time is reasonable and will award the full
Counsel also requests compensation for 3.75 paralegal hours at an hourly rate of $75.00.
ECF No. 13, Ex. 11. A prevailing party that satisfies EAJA's other requirements may recover
paralegal fees at prevailing market rates. Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 572
(2008). Counsel attached several affidavits of local attorneys as evidence that $75.00 per hour
is the prevailing market rate for paralegal services in Arkansas. ECF No. 13, Exs. 2-8. The
undersigned finds $75.00 per hour for paralegal work to be reasonable and will award the full
Finally, Plaintiff seeks reimbursement of $21.85 for certified mail expenses incurred in
connection with service of process. The undersigned notes Plaintiff’s mischaracterization of
these expenses as costs; however, the undersigned finds that these expenses are compensable
under the EAJA. See Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988). Additionally, the
undersigned finds $21.85 to be a reasonable award. As Plaintiff’s counsel has now been apprised
of the proper characterization of these fees, proper characterization should be used in the future
to ensure a full award.
Based on the above, the court awards Plaintiff fees under the EAJA for: 6.00 attorney
hours at an hourly rate of $155.00 for work performed in 2011 and 2012, 3.75 paralegal hours
at an hourly rate of $75.00, and $21.85 in out-of-pocket expenses, for a total attorney's fee award
of $1,233.10.2 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 made payable
directly to Plaintiff, but may be properly mailed to Plaintiff’s attorney.3 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
IT IS SO ORDERED this 26th day of March 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
The undersigned notes that Plaintiff made a calculation error regarding the total amount of paralegal
fees. As such, the final award has been adjusted to reflect the proper amount.
On June 14, 2010, the Supreme Court overturned Ratliff v. Astrue, 540 F.3d 800, 802 (8th Cir. 2008),
and 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, but may be properly mailed to Plaintiff’s attorney.
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