Winkle v. Social Security Administration Commissioner
ORDER granting 19 Motion for Attorney Fees in the amount of $4,370.80 pursuant to the 28U.S.C. § 2412. Signed by Honorable Barry A. Bryant on October 11, 2019. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
SCOTT VAN WINKLE
Civil No. 4:18-cv-04122
Pending now before the Court is Plaintiff’s Motion for Attorney’s Fees Pursuant to the
Equal Access to Justice Act (“EAJA”). ECF No. 19. Defendant responded to this Motion and
raised no objections to this Motion. 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. 5. Pursuant to this authority, the Court issues this Order.
On August 27, 2018, Scott Van Winkle (“Plaintiff”) appealed to the Court from the
Secretary of the Social Security Administration’s (“SSA”) denial of his request for disability
benefits. ECF No. 1. On July 23, 2019, Plaintiff’s case was reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g). ECF Nos. 17-18.
On October 2, 2019, Plaintiff filed this Motion. ECF No. 19. With this Motion, Plaintiff
requests an award of $4,370.80. Id. This includes 22.30 hours at an attorney hourly rate of $196.00
for work performed in 2018 and 2019. Id. Defendant has no objections to Plaintiff’s Motion or
his requested fees. ECF No. 20.
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). See also General Order 39 (“Attorney’s
Fees Under the Equal Access to Justice Act”).
In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 17-18.
Defendant does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his
application for fees under the EAJA. ECF No. 20. The Court construes the 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 $4,370.80 under the EAJA. ECF No. 19. This includes
22.30 hours at an attorney hourly rate of $196.00 for work performed in 2018 and 2019. Id.
Defendant has no objections to Plaintiff’s Motion or his requested fees. ECF No. 20. This attorney
hourly rates is authorized by the EAJA as long as the CPI-South Index justifies this 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, the Court finds the CPI-South Index authorizes $196.00 for work performed in
2018 and 2019. Thus, the Court awards this hourly rate.
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Astrue
v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521 (2010). ECF No. 20. Ratliff requires that attorney’s fees
be awarded to the “prevailing party” or the litigant. See id. 130 S.Ct. at 2528. 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 directly to
Based upon the foregoing, the Court awards Plaintiff $4,370.80 pursuant to the EAJA, 28
U.S.C. § 2412. This includes 22.30 hours at an attorney hourly rate of $196.00 for work performed
in 2018 and 2019.
ENTERED this 11th day of October 2019.
Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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