O'Neal v. Social Security Administration Commissioner

Filing 18

ORDER granting 17 Motion for Attorney's Fees and awarding Plaintiff attorney's fees in the amount of $2,409.00 pursuant to the EAJA, 28 U.S.C. § 2412. Signed by Honorable Barry A. Bryant on July 22, 2011. (mfr)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAMES ARTHUR O’NEAL, JR.
vs.

PLAINTIFF
Civil No. 4:10-cv-04072

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney’s Fees Pursuant to Equal
Access to Justice Act (“EAJA”). ECF No. 17.1 Defendant has responded to this Motion and does not
object to the amount of attorney’s fees Plaintiff has requested. ECF No. 15. Instead, Defendant only
argues that the attorney’s fees must be made payable directly to Plaintiff, not Plaintiff’s attorney. Id.
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. 6. Pursuant to this authority, the Court issues this Order.
1. Background:
James Arthur O’Neal, Jr. (“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 June
29, 2011, this Court reversed and remanded Plaintiff’s case pursuant to sentence four of 42 U.S.C. §
405(g). ECF Nos. 12-13.
On July 11, 2011, Plaintiff filed the present motion requesting an award of attorney’s fees

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

under the EAJA. ECF Nos. 14, 17.2 With this motion, Plaintiff requests an award of attorney’s fees
of $2,409.00, representing 14.6 hours at an hourly rate of $165.00. Id. Defendant responded to this
motion on July 19, 2011 and has no objections to the requested attorney fees. ECF No. 15.
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:

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Plaintiff originally filed his motion for attorney’s fees on July 11, 2011. ECF No. 14. Plaintiff,
however, did not attach a CPI to this motion. Thus, this Court entered an order directing a CPI be filed. ECF
No. 16. Plaintiff then filed a second motion for attorney’s fees with a CPI attached. ECF No. 17. The second
motion is currently before this Court.

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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.”
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. 13. Defendant does
not contest Plaintiff’s claim that he is the prevailing party, does not oppose his application for fees
under the EAJA, does not object to the hourly rate he requested, and does not dispute the number of
hours expended by counsel. ECF No. 15. 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 $2,409.00 under the EAJA. ECF No. 17. Plaintiff requests

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these fees at a rate of $165.00 per hour for 14.6 hours of attorney work. Id. This hourly rate of
$165.00 per attorney hour is authorized by the EAJA as long as a CPI is submitted and justifies the
enhanced rate. See 28 U.S.C. § 2412(d)(2)(A); Johnson, 919 F.2d at 504. In the present action,
Plaintiff submitted a CPI3, and Defendant does not object to an enhanced rate. ECF No. 17.
Therefore, this Court finds that Plaintiff is entitled to an hourly rate of $165.00 per attorney hour.
Further, I have reviewed counsel’s itemization of time appended to Plaintiff’s application. ECF
No. 17. This Court notes that Defendant has not objected to the number of hours for which counsel
seeks a fee award, and this Court finds the time asserted to be spent in the representation of Plaintiff
before the district court is reasonable. Thus, this Court finds that Plaintiff is entitled to an attorney’s
fee award under EAJA in the amount of $2,409.00, representing $165.00 per hour for 14.6 hours of
attorney work.
Defendant claims the EAJA fees awarded should be paid directly to Plaintiff, and not his
counsel, pursuant to Ratliff. ECF No. 15. Ratliff requires that the EAJA fees be awarded to the
“prevailing party” or the litigant. See Astrue v. Ratliff, 130 S.Ct. 2521, 2528-29 (2010). Thus, these
fees must be awarded to Plaintiff, not to Plaintiff’s attorney. However, if Plaintiff has executed a valid
assignment to Plaintiff’s attorney of all rights in the EAJA fee award and Plaintiff owes no outstanding
debt to the federal government, the EAJA fee may be awarded directly to Plaintiff’s attorney.
4. Conclusion:
Based upon the foregoing, the Court awards Plaintiff $2,409.00 pursuant to the EAJA, 28

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The CPI Plaintiff submitted is only from May of 2010. ECF No. 17-1. It appears Plaintiff should
have submitted a CPI from 1996 to the present justifying an increase from the date the EAJA authorized
$125.00 per hour (1996) to the present. Defendant, however, does not object to Plaintiff’s failure to submit a
CPI. ECF No. 15. Therefore, this Court finds the CPI from May of 2010 is sufficient for purposes of this
application.

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U.S.C. § 2412.
ENTERED this 22nd day of July, 2010.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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