Beshears v. Social Security Administration Commissioner

Filing 17

ORDER granting 14 Motion for Attorney Fees and awards Plaintiff $4,079.40 in attorney's fees pursuant to EAJA, 28 USC § 2412. Signed by Honorable Barry A. Bryant on September 2, 2010. (cap)

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Beshears v. Social Security Administration Commissioner Doc. 17 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION RICKEY A. BESHEARS vs. Civil No. 6:09-cv-06064 PLAINTIFF MICHAEL J. ASTRUE Commissioner, Social Security Administration ORDER DEFENDANT Pending now before this Court is Plaintiff's Application for Attorney Fees Under the Equal Access to Justice Act ("EAJA"). ECF No. 14.1 Defendant has responded to this Motion and objects to the requested amount as being excessive. ECF No. 16. 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. 1. Background: Rickey Beshears ("Plaintiff") appealed to this Court from the Secretary of the Social Security Administration's ("SSA") denial of his request for Disability Insurance Benefits ("DIB") under Title II of the Act. ECF No. 1. On June 17, 2010, this Court reversed and remanded Plaintiff's case pursuant to sentence four of 42 U.S.C. 405(g). ECF No. 13. On August 18, 2010, Plaintiff filed the present Motion requesting an award of attorney's fees under the EAJA. ECF No. 14. With this Motion, Plaintiff requests an award of attorney's fees of $4,084.81, representing 18.95 hours of attorney time during 2009 at an hourly rate of $172.24 and 4.70 hours of attorney time during 2010 at an hourly rate of $174.65. ECF No. 14-1. Defendant 1 The docket numbers for this case are referenced by the designation "ECF. No." responded to this Motion on August 24, 2010 and objects to the hourly rate requested as being excessive. ECF No. 16. Defendant argues that Plaintiff is only entitled to an attorney's fee award of $4,081.75, which reflects a reduction in the hourly rate for 2010 from $174.65 to $174.00. See id. Defendant also notes in his response to the request for attorney's fees that any fees awarded should be awarded directly to Plaintiff and not to Plaintiff's attorney. See Astrue v. Ratliff, No. 081322, 2010 WL 2346547, at *1 (June 14, 2010). 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: 2 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. 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. 13. Defendant does not contest Plaintiff's claim that he is the prevailing party, does not oppose his application for fees under the EAJA, and does not object to the hourly rate he requested. ECF No. 16. 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 $4,084.81 under the EAJA. ECF No. 14-1. Plaintiff requests these fees at a rate of $172.24 during 2009 and $174.65 during 2010. ECF No. 14-1. An enhanced hourly rate is authorized when a CPI demonstrating a cost of living increase is submitted. 3 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. 14-3. Based upon this CPI, this Court authorizes an enhanced hourly rate and awards Plaintiff $172.24 for 18.95 hours of attorney work during 2009 and $173.50 for 4.70 hours of attorney work during 2010. This amount totals $4,079.40. Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Ratliff. ECF No. 16. In Plaintiff's Motion, Plaintiff requested that these attorney's fees be awarded to his attorney. ECF No. 14. Ratliff requires that attorney's fees be awarded to the "prevailing party" or the litigant. See Ratliff, 2010 WL 2346547, at *1 (June 14, 2010). Thus, these fees must be awarded to Plaintiff, not to Plaintiff's attorney. See id. However, if Plaintiff has executed an assignment to Plaintiff's counsel of all rights in an attorney fee award, and if Plaintiff owes no outstanding debt to the federal government, the attorney fee award may be awarded to Plaintiff's attorney. 4. Conclusion: Based upon the foregoing, the Court GRANTS Plaintiff's Application for Attorney Fees under the EAJA (ECF No. 14) and awards Plaintiff $4,079.40 in attorney's fees pursuant to the EAJA, 28 U.S.C. 2412. ENTERED this 2nd day of September, 2010. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 4

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