Rush v. Social Security Administration Commissioner

Filing 20

ORDER re 16 Motion for Attorney Fees, awarding Plaintiff attorney's fees in the amount of $3,762.00 pursuant to the EAJA, 28 U.S.C. § 2412. Signed by Honorable Barry A. Bryant on June 17, 2013. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
TABITHA RUSH
vs.

PLAINTIFF
Civil No. 4:12-cv-04078

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

ORDER
Pending now before this Court is Plaintiff’s Application for Attorney’s Fees Under the Equal
Access to Justice Act (“EAJA”). ECF No. 16. Defendant has responded to this Motion and objects that
Plaintiff’s request is premature because the judgement is not final. ECF No. 19. 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. 13. Pursuant to this authority, the Court issues this Order.
1.

Background:
Tabitha Rush (“Plaintiff”) appealed to this Court from the Secretary of the Social Security

Administration’s (“SSA”) denial of her request for disability benefits. ECF No. 1. On April 16, 2013,
Plaintiff’s case was reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). ECF No.
14, 15.
On May 2, 2013, Plaintiff filed the present Motion requesting an award of attorney’s fees under
the EAJA. ECF No. 16. With this Motion, Plaintiff requests an award of attorney’s fees of $3,762.00.
Id. The attorney’s fees represent 20.90 attorney hours at an hourly rate of $180.00 for work performed
in 2012 and 2013. Id.
Defendant responded to this Motion on May 14, 2013 and objects that Plaintiff’s request is

premature because the judgement is not final. ECF No. 19. Defendant argues Plaintiff is entitled to no
relief until the judgment becomes final on June 15, 2013,which is when Defendant’s time for appeal will
end. Id. That date has passed and Defendant has not appealed, therefore this objection is moot.
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.”
2

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. 15. Defendant does

not contest Plaintiff’s claim that she is the prevailing party, does not oppose her application for fees under
the EAJA, and does not object to the number of hours claim by Plaintiff’s counsel. ECF No. 19. 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 $3,762.00 under the EAJA. ECF No. 16. Plaintiff requests
these fees at a rate of $180.00 per attorney hour. Id. The hourly rate of $180.00 per attorney hour is
authorized by the EAJA as long as the CPI-South index justifies the enhanced rate. See General Order
39. See also 28 U.S.C. § 2412(d)(2)(A); Johnson, 919 F.2d at 504. In the present action, Plaintiff’s
requested rate of $180.00 is authorized by CPI-South index. Further, Defendant does not object to this
hourly rate. ECF No. 19. Thus, this hourly rate is authorized by the EAJA, and this Court finds Plaintiff

3

is entitled to $180.00 per hour of attorney work performed.
Further, this Court has reviewed Plaintiff’s request for 20.90 hours of attorney work during 2012
and 2013. ECF No. 17-1. Plaintiff has submitted an itemized bill in support of that request. Id.
Defendant has no specific objection to Plaintiff’s itemized bill. ECF No. 19. Upon review, this Court
finds the hours requested are reasonable and should be awarded and finds Plaintiff is entitled to 20.90
hours of attorney work at an hourly rate of hourly rate of $180.00 for work performed in 2012 and 2013
resulting in a total award of $3,762.00.
4.

Conclusion:
Based upon the foregoing, Plaintiff is awarded $3,762.00 in attorney’s fees pursuant to the EAJA,

28 U.S.C. § 2412.
ENTERED this 17th day of June 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

4