Perry v. Social Security Administration Commissioner
ORDER on Attorney Fees in the amount of $2,777.30. Signed by Honorable Barry A. Bryant on December 23, 2016. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Civil No. 6:15-cv-06097
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Pending now before this Court is Plaintiff’s Application for Attorney’s Fees Under the Equal
Access to Justice Act (“EAJA”). ECF No. 17. Defendant has not responded to this Motion and the
time to respond has passed. 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. 8. Pursuant to this
authority, the Court issues this Order.
Ryan Perry, (“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 August 25,
2016, Plaintiff’s case was remanded pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 16.
On November 22, 2016, Plaintiff filed the present Motion requesting an award of attorney’s
fees under the EAJA. ECF No 17. With this Motion, Plaintiff requests an award of attorney’s fees
and costs of $2779.93. Id. This amount represents 14.00 attorney hours at an hourly rate of $188.12
for work performed and 1.95 paralegal hours at an hourly rate of $75.00. Id.
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.”
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).
In the present action, Plaintiff’s case was remanded to the SSA. ECF No. 16. Defendant
does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application
for fees under the EAJA. 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 $2,779.93 under the EAJA. ECF No. 17. Plaintiff requests
these attorney fees at a rate of $188.12 per hour for work performed in both 2015 and 2016. Id. An
enhanced hourly rate is authorized by the EAJA as long as a Consumer Price Index (“CPI”) justifies
such the enhanced hourly rate. See 28 U.S.C. § 2412(d)(2)(A). See also Johnson, 919 F.2d at 504.
An enhanced hourly rate is authorized by the EAJA as long as a Consumer Price Index (“CPI”)
justifies such the enhanced hourly rate. See 28 U.S.C. § 2412(d)(2)(A). See also Johnson, 919 F.2d
at 504. Based upon the CPI-South Index, the hourly rate of $187.00 is authorized for 2015 and
$188.00 is authorized for 2016. Accordingly, the Court awards these hourly rates.
Further, I have reviewed counsel’s itemization of time appended to Plaintiff’s application.
ECF No. 17. 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 $2,777.30 representing 0.95 attorney hours at an
hourly rate of $187.00 for work performed in 2015, 13.05 attorney hours at an hourly rate of $188.00
for work performed in 2106, and 1.95 paralegal hours at an hourly rate of $75.00.
Finally, Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010) requires that attorney’s fees be
awarded to the “prevailing party” or the litigant. See id, 130 S.Ct. 2521, 2528 (2010). 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 to Plaintiff’s attorney
Based upon the foregoing, Plaintiff is awarded $2,777.30 in attorney’s fees pursuant to the
EAJA, 28 U.S.C. § 2412.
ENTERED this 23rd day of December 2016.
s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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