Hensley v. Social Security Administration Commissioner
ORDER re 12 Motion for Attorney Fees, awarding Plaintiff $2,409.00 in attorney fees pursuant to the EAJA, 28 U.S.C. § 2412. Signed by Honorable Barry A. Bryant on September 19, 2011. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JACK K. HENSLEY
Civil No. 4:10-cv-04099
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
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 $2,409.00. Id. On September16, 2011, Defendant responded to this Motion. ECF No. 13. 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.
Jack Hensley (“Plaintiff”) appealed to this Court from the Secretary of the Social Security
Administration’s (“SSA”) denial of his request for Supplemental Security Income (“SSI”) and a
period of disability under Title XVI of the Act. ECF No. 1. On August 25, 2011, this Court reversed
and remanded Plaintiff’s case pursuant to sentence four of 42 U.S.C. § 405(g). ECF Nos. 10-11.
On September 9, 2011, 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 $2,409.00, representing 14.60 hours of attorney time at an hourly rate of $165.00. ECF No. 12.
On September 16, 2011, Defendant responded to this Motion and objects to Plaintiff’s attorney’s
The docket numbers for this case are referenced by the designation “ECF. No.”
request that the EAJA payment be made directly to him, instead of to Plaintiff. ECF No. 13.
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.”
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.
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).
In the present action, Plaintiff’ s case was remanded to the SSA. ECF Nos. 10-11.
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. 13. 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. 12. Plaintiff
requests these fees at a rate of $165.00 per hour for 14.60 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.
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. 12. Therefore, this hourly rate is authorized by the EAJA, and 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. 12. 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 14.60 hours of attorney time at an hourly rate of $165.00.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to. Astrue
v. Ratliff, 130 S.Ct. 2521, 2528 (2010). ECF No. 15. Ratliff requires that attorney’ s fees be
awarded to the “ prevailing party” or the litigant. See id, 130 S.Ct. 2521, 2528 (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 an attorney’ s fee award and
Plaintiff owes no outstanding debt to the federal government, the attorney’ s fee may be awarded
to Plaintiff’ s attorney.
Based upon the foregoing, the Court awards Plaintiff $2,409.00 pursuant to the EAJA, 28
U.S.C. § 2412.
ENTERED this 19th day of September, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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