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)

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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

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