Enix v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER awarding Plaintiff the sum of $4,716.00 for attorneys fees. Signed by Honorable Mark E. Ford on December 4, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CATHERINE DIANE ENIX
CIVIL NO. 3:16-cv-3108-MEF
CAROLYN W. COLVIN, Commissioner
Social Security Administration
MEMORANDUM OPINION AND ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). (ECF Nos. 19, 20). The Defendant has filed a response and the
matter is now ripe for resolution. (ECF No. 22).
On November 1, 2017, Plaintiff filed a motion for attorney’s fees and costs under 28 U.S.C.
§ 2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting $4,716.00 representing
a total of 26.2 attorney hours for work performed in 2016 and 2017 at an hourly rate of $180.00.
(ECF No. 19). On November 8, 2017, the Defendant filed a response objecting only to the
timeliness of the Plaintiff’s motion. (ECF No. 22). Defendant contends that Plaintiff’s motion is
A party may file for attorney fees under the EAJA within 30 days of final judgment. 28
U.S.C. § 2412(d)(1)(B). A final judgment, for purposes of the EAJA, is one that is “final and not
appealable.” 28 U.S.C. § 2412(d)(2)(G). Where, as here, the United States Government is a party
to proceedings, the appeal period runs for 60 days from the entry of a judgment. See Fed. R. App.
P. 4(a)(1)(B). Thus, a request for an award of attorney fees under the EAJA may be filed up until
30 days after the judgment becomes “not appealable,” i.e., 30 days after the 60-day time for appeal
In the present case, this Court remanded the case pursuant to the Administration’s Motion
for Sentence Four Remand on September 27, 2017. (ECF No. 18). As such, the Judgment became
final and not appealable on November 26, 2017. While we agree that Plaintiff’s November 1,
2017, motion was premature, we also note that the case was remanded on the Commissioner’s
Motion. Moreover, as of the date of this decision, the motion is now timely. Therefore, because
the Administration has addressed the merits of the Plaintiff’s motion in its response, the Court will
rule on the merits of the case. We find that dismissing the matter and requiring the Plaintiff to
refile the same exact motion, given these circumstances, would be inefficient; however, counsel
for the Plaintiff is reminded of the time provisions found in 28 U.S.C. § 2412(d)(2)(G) and Rule
4(a)(1)(B) of the Federal Rules of Appellate Procedure.
Accordingly, after reviewing the Plaintiff’s motion and the Administration’s response, it is
the opinion of the undersigned that the Plaintiff is entitled to a fee award in this case. The record
clearly shows that she is the prevailing party; the government’s decision to deny benefits was not
“substantially justified;” the hourly rate requested for attorney hours does not exceed the CPI for
either year in question; and, the time asserted to have been spent in the representation of the
Plaintiff before the district court is reasonable. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir.
1986) (burden is on the Commissioner to show substantial justification for the government’s denial
of benefits); Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990) (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); and, Allen v. Heckler, 588 F.Supp. 1247 (W.D.N.Y.
1984) (in determining reasonableness, court looks at 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). As such, the undersigned finds that the Plaintiff is entitled to an attorney’s fee
award under EAJA in the amount of $4,716.00.
Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA fee award should be
made payable to Plaintiff. As a matter of practice, however, an EAJA fee made payable to Plaintiff
may properly be mailed to Plaintiff’s counsel.
The parties are reminded that, in order to prevent double recovery by counsel for the
Plaintiff, 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.
Accordingly, the Plaintiff is awarded the sum of $4,716.00 for attorney’s fees pursuant to
the EAJA, 28 U.S.C. § 2412.
Dated this 4th day of December, 2017.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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