Bender v. Commissioner of Social Security

Filing 29

ORDER granting 25 the Plaintiff's Motion for EAJA Fees. See Written Order. Entered by Magistrate Judge Jonathan E. Hawley on 9/17/2014. (KZ, ilcd)

E-FILED

Wednesday, 17 September, 2014 10:05:22 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
KYMBERLY K. BENDER
Plaintiff,
No. 4:13-cv-04039-JEH

v.
COMMISSIONER OF
SOCIAL SECURITY
Defendant.

ORDER
Now before the Court is the Plaintiff Kymberly K. Bender’s Motion for EAJA
Fees (Doc. 25). The Motion is fully briefed. For the reasons stated herein, the
Motion is GRANTED.
I
The Plaintiff filed her Complaint (Doc. 1) on April 19, 2013 seeking review of
the final decision of the Commissioner denying her claim for Disability benefits
pursuant to 42 USC § 405(g). On June 25, 2014, the parties filed a Joint Motion for
Entry of Judgment with Remand Under Sentence Four of 42 USC § 405(g) (Doc. 22),
which the Court granted and entered its Order of Remand Under Sentence Four of
42 USC § 405(g) (Doc. 23) on June 26, 2014. The Plaintiff now seeks attorney fees as
the “prevailing party” pursuant to 28 USC § 2412(d)(1)(B) in the amount of
$5,675.00. 1

In her Response to the Plaintiff’s Motion for EAJA Fees, the

Commissioner does not dispute that the Plaintiff is the prevailing party in this

The Court notes that on the first page of the Plaintiff’s Motion for EAJA Fees, she requests attorney fees in the
amount of $3,862.42 based upon 21.2 hours. (Doc. 25 at p. 1). However, in her Memorandum in Support of
Motion EAJA Fees with Supporting Itemization, she requests attorney fees in the amount of $5,675.00 based
upon 22.7 hours. (Doc. 25-1 at p. 5). It is clear that the latter amount is the amount she seeks given the attached
Exhibit 1, Itemization of Hours, which indicates 22.7 hours at $250 per hour. (Doc. 25-2).
1

1

action, nor does the Commissioner dispute that the Government’s position was not
substantially justified. Instead, the Commissioner takes issue with the amount of
attorney fees that the Plaintiff seeks, arguing that she has failed to show that she is
entitled to an attorney rate of $250 per hour.
II
28 USC § 2412(d)(1)(B) provides:
A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the party is a
prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized statement
from any attorney or expert witness representing or appearing in
behalf of the party stating the actual time expended and the rate at
which fees and other expenses were computed. The party shall also
allege that the position of the United States was not substantially
justified. Whether or not the position of the United States was
substantially justified shall be determined on the basis of the record
(including the record with respect to the action or failure to act by the
agency upon which the civil action is based) which is made in the civil
action for which fees and other expenses are sought.
28 USC § 2412(d)(2)(A) provides, in relevant part, that “fees and other expenses” in
Section 2412(d)(1)(B) include:
[R]easonable attorney fees (The amount of fees awarded under this
subsection shall be based upon prevailing market rates for the kind and
quality of the services furnished, except that . . . attorney fees shall not
be awarded in excess of $125 per hour unless 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.
Here, the Plaintiff argues that an upward adjustment of attorney fees is warranted
because a special factor justifies the higher fee of $250 per hour, namely, that the
Plaintiff's attorney, Andrew M. Larson, devotes a substantial portion of his practice
to Social Security Disability law and the Laffey Matrix shows that Attorney Larson
2

should be charging between $309 and $380 per hour. As the Court explained in its
August 21, 2014 Text Order, the Laffey Matrix Explanatory Notes expressly state
that, “The matrix does not apply in cases in which the hourly rate is limited by
statute. See 28 USC § 2412(d).” See (Doc. 26-1) n 1 (emphasis supplied).
Accordingly, the Court will not consider the Laffey Matrix in determining
whether the EAJA fees the Plaintiff seeks beyond the $125 per hour cap are justified
under Section 2412(d)(2)(A). Nonetheless, Attorney Larson did provide his own
Affidavit (Doc. 25-3) as well as the Affidavit of Attorney Thad Murphy (Doc. 28) in
support of Attorney Larson’s request for attorney fees at $250 per hour. Attorney
Larson’s Affidavit provides that he regularly practices in Federal Courts in the
Southern District of Iowa and the Central District of Illinois, and that he routinely
charges $250 per hour for work in several areas of law.

Similarly, Attorney

Murphy’s Affidavit provides that he practices in Federal Courts in the Northern
District of Iowa, Southern District of Iowa, and the Central District of Illinois, and
that his office now charges $225 2 for work in Federal Court on Social Security
disability matters.
The limited-availability special factor applies “if a plaintiff can show that a
particular kind of case requires for competent counsel someone from among a small
class of specialists who are available only for more than $125 per hour . . . .”
Mathews-Sheets v Astrue, 653 F3d 560, 564 (7th Cir 2011), quoting Atlantic Fish Spotters
Association v Daley, 205 F3d 488, 492 (1st Cir 2000). The Plaintiff also explains many
experienced attorneys refer federal court cases to her attorney due to the
complicated nature of Social Security disability cases. The provided Affidavits and
representations made in the Plaintiff’s Memorandum sufficiently show that the case
currently before the Court requires competent counsel from among a small class of
specialists who are available only for more than $125 per hour. The Plaintiff is
Though not specified in the Affidavit, the Court presumes that the $225 amount represents an hourly amount
charged for Social Security disability matters by Attorney Murphy’s office.

2

3

therefore eligible to receive an award of attorney fees under Section 2412(d)(1)(B) of
the EAJA. However, that award of EAJA fees is subject to Government offset to
satisfy a pre-existing debt, if any exists, that the Plaintiff owes the United States. See
Astrue v Ratliff, 560 US 586, 589 (2010) (“We hold that a § 2412(d) fees award is
payable to the litigant and is therefore subject to a Government offset to satisfy a
pre-existing debt that the litigant owes the United States”). If there are no preexisting debts that the Plaintiff owes the United States, the attorney fees awarded in
this Order shall be paid directly to the Plaintiff’s counsel.
III
For the reasons set forth above, the Plaintiff’s Motion for EAJA Fees is
GRANTED (Doc. 25), and the Plaintiff is awarded attorney fees under Section
2412(d)(1)(B) of the EAJA in the amount of $5,675.00 payable directly to her counsel
only if there are no pre-existing debts that the Plaintiff owes the United States. If the
Plaintiff does have pre-existing debts owed to the United States, her EAJA attorney
fee award is subject to a Government offset to satisfy the pre-existing debts.
Entered on September 17, 2014
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

4