Doelling v. Social Security Administration Commissioner
Filing
21
ORDER granting 16 Motion for Attorney Fees in the amount of $4,338.00 pursuant to the EAJA. Signed by Honorable Barry A. Bryant on March 20, 2015. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAY DOELLING
vs.
PLAINTIFF
Civil No. 4:14-cv-04021
CAROLYN COLVIN
Commissioner, Social Security Administration
DEFENDANT
ORDER
Pending now before this Court is Plaintiff’s Application for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). ECF No. 16.1 With this Motion, Plaintiff requests an EAJA award
of $4,338.00. Id. On February 27, 2015, Defendant responded to this Motion and objects based on
the application being filed untimely. ECF No. 19. On March 2, 2015, Plaintiff filed a reply and
argues the deadline should be equitably tolled. ECF No. 20. 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. 9. Pursuant to this authority, the Court issues this Order.
1. Background:
Jay Doelling (“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 November
7, 2015, this Court reversed and remanded Plaintiff’s case pursuant to sentence four of 42 U.S.C.
§ 405(g). ECF Nos. 15.
On February 16, 2015 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
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The docket numbers for this case are referenced by the designation “ECF. No.”
of $4,338.00, representing 24.10 attorney hours at an hourly rate of $180.00. Id. On February 27,
2015, Defendant responded to this Motion and objects based on the application being filed untimely.
ECF No. 19.
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.”
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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:
Defendant objects to an award of EAJA fees based on the application being filed untimely.
ECF No. 19. Plaintiff filed a reply and argues the deadline should be equitably tolled. ECF No. 20.
There appears to be no dispute that the February 16, 2015, motion for EAJA fees is untimely.
The Court issued a November 7, 2014, Judgment reversing and remanding the case pursuant to
sentence four. ECF No. 15. The judgment became final on January 6, 2015 and the thirty day time
limit for filing an EAJA motion ended on February 5, 2015. Accordingly, Plaintiff’s February 16,
2015, EAJA motion is untimely.
The 30-day deadline for an EAJA fee application is not a jurisdictional bar. Scarborough
v. Principi, 541 U.S. 401, 124 S. Ct. 1856 (2004). Because the 30-day deadline is not jurisdictional,
courts may consider equitable-tolling and the relation back doctrine when addressing an untimely
filing or amended application for attorney fees. Id; see also Townsend v. Commissioner of Social
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Security, 415 F.3d 578 (6th Cir.2005).
In this matter, Plaintiff argues for extraordinary circumstances as the basis for equitably
tolling the filing deadline of his EAJA motion. ECF No. 20. According to Plaintiff’s counsel, he
employs an assistant that is responsible for calendaring and filing the fee applications once such
applications are prepared. Id. This assistant was extremely ill with the flu for multiple weeks
around the time the fee application was due. Id. This illness caused counsel and his assistant to get
behind in their work, and this caused him to miss the filing deadline. Id.
This Court finds the deadline for filing the EAJA motion was due to extraordinary
circumstances beyond the Plaintiff counsel’s control and these circumstances should allow the
deadline for filing the EAJA application to be equitably tolled.
Defendant does not contest Plaintiff’s claim that he is the prevailing party, does not object
to the hourly rate he requested, and does not dispute the number of hours expended by 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 $4,338.00 under the EAJA. ECF No. 16. Plaintiff requests
these attorney fees at a rate of $180.00 per hour for work performed. Id. This hourly rate 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 rates are 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 is entitled to $180.00 per hour of attorney work performed.
Further, I have reviewed counsel’s itemization of time appended to Plaintiff’s application.
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ECF No. 17-2. 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 $4,338.00, representing 24.10 hours of attorney
time at an hourly rate of $180.00.
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.
4. Conclusion:
Based upon the foregoing, the Court awards Plaintiff $4,338.00 pursuant to the EAJA, 28
U.S.C. § 2412.
ENTERED this 20th day of March 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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