Cardenas v. Colvin

Filing 22

ORDER granting 18 the Plaintiff's Motion for Attorney Fees. See Written Order. Entered by Magistrate Judge Jonathan E. Hawley on 3/9/2016. (KZ, ilcd)

E-FILED

Wednesday, 09 March, 2016 04:30:03 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
JENNIFER SHAYNE CARDENAS,
Plaintiff,
v.

Case No. 4:14-cv-04090-JEH

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order
I
The Plaintiff filed her Complaint (Doc. 1) on October 7, 2014 seeking
review of the final decision of the Commissioner denying her application for
Social Security Disability Insurance Benefits and Supplemental Security Income.
On November 20, 2015, the Court reversed the Commissioner’s decision and
remanded this case pursuant to Sentence 4 of 42 U.S.C. § 405(g) for further
proceedings consistent with the Court’s Order. The Plaintiff now seeks attorney
fees as the “prevailing party” pursuant to 28 U.S.C. § 2412(d) in the amount of
$5,544.42 and costs payable from the Judgment Fund pursuant to 31 U.S.C. §
1304 in the amount of $400.00. The Commissioner filed a Response (Doc. 21) to
the Plaintiff’s Motion for Attorney Fees Under the Equal Access to Justice Act 28
U.S.C. Section 2412(d)(1)(A) (Doc. 18) in which the Commissioner states that she
will not file objections to the Plaintiff’s petition for fees and expenses. The Court
rules as follows.
II
28 U.S.C. § 2412(d)(1)(B) provides:
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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 U.S.C. § 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 the entire history of the Commissioner’s position
in this matter should be considered to determine whether her position was
“substantially justified.”

The Plaintiff argues that when that history is

considered, the Defendant’s position emerges as unreasonable at the very least.
It is the Government’s burden to prove that its position was substantially
justified, and to do so, the Government must show: 1) a reasonable basis in truth
for the facts alleged and the theory propounded; 2) a reasonable basis in law for
the theory propounded; and 3) a reasonable connection between the facts alleged

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and the theory propounded. United States v. Pecore, 664 F.3d 1125, 1131 (7th Cir.
2011) (internal citations omitted).
In this case, the Government did not sustain its burden where it states that
it will not file objections to the Plaintiff’s petition for fees and expenses.
Moreover, in its Order and Opinion the Court identified the errors the ALJ
committed that required remand; such identified errors preclude the
Government from now showing that its position was substantially justified.
Next, the Plaintiff seeks an attorney fee award of $184.20 per hour, in
excess of the $125 per hour rate set forth in Section 2412(d)(2)(A), based upon the
increased cost of living and the increased cost of litigating a claim by the
Plaintiff’s counsel’s office. The Court has considered the increased cost of living
as detailed in the Plaintiff’s Motion, her counsel’s Affirmation (Doc. 19-2), the
Itemization of Hours (Doc. 19-3), and Affidavit (Doc. 19-5) and finds that the
30.10 hours claimed in this case at a rate of $184.20 per hour is reasonable.
Accordingly, the Court finds that the proper award of fees in this matter is
$5,544.42. The Plaintiff’s total award pursuant to the EAJA is $5,544.42. She is
also granted costs in the amount of $400.00 payable from the Judgment Fund
pursuant to 31 U.S.C. § 1304.
Finally, the Plaintiff requests that the EAJA fees be made payable to the
Plaintiff’s attorney pursuant to the assignment attached to the Motion (Doc. 194). If there are no pre-existing debts that the Plaintiff owes the United States, the
attorney fees awarded in this Order shall be paid directly to the Plaintiff’s
counsel. See Astrue v. Ratliff, 560 U.S. 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”).

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III
For the reasons set forth above, the Plaintiff’s Motion for Attorney Fees
Under the Equal Access to Justice Act 28 U.S.C. Section 2412(d)(1)(A) is
GRANTED (Doc. 18), and the Plaintiff is awarded $5,544.42 in attorney fees and
is also awarded costs in the amount of $400.00. The EAJA award is payable
directly to the Plaintiff’s 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.
It is so ordered.
Entered on March 9, 2016.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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