Russell v. Astrue

Filing 26

ORDER AWARDING Plaintiff $3750 in attorneys' fees and expenses plus $350 in costs, pursuant to parties' joint Stipulation (Doc. 25) and the Equal Access to Justice Act. The Order renders moot 23 , Plaintiff's Motion for Attorney Fees. See Order for details. Signed by Judge Michael J. Reagan on 9/14/12. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DIANA S. RUSSELL,
Plaintiff,
Vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 11-cv-0666-MJR-CJP

ORDER AWARDING ATTORNEYS’ FEES AND COSTS
REAGAN, District Judge:
In May 2012, the undersigned District Judge entered an Order reversing
the Commissioner’s decision (which had denied Diana Russell’s application for
social security disability benefits) and remanding the case for rehearing and
reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. 405(g).
The Court entered judgment in favor of Plaintiff Russell and against Defendant
Commissioner accordingly on May 10, 2012.
On August 12, 2012, Plaintiff Russell moved for attorney’s fees under the
Equal Access to Justice Act, 28 U.S.C. 2412. The motion was accompanied by
documentation to support the request for an award of $4,166.55 in attorneys’
fees and expenses (based on an hourly rate of $177.30 for Plaintiff’s counsel)
plus $350.00 in costs (the amount of the federal court filing fees). The Court
set a briefing schedule on the motion. Before those briefing deadlines expired,
on September 12, 2012, the parties filed a joint Stipulation to Award EAJA
Fees (Doc. 25).

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Via this stipulation, the parties agree to an award to Plaintiff under the
EAJA as follows:

$3750 in attorney’s fees and expenses under Section

2412(d) plus $350 in costs under Section 2412(a), for a total award of
$4100.
The Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), directs a
court to award a prevailing party in litigation with the United States,
specifically including proceedings for judicial review of agency action, attorneys’
fees and other expenses, “unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award
unjust.” Gatimi v. Holder, 606 F.3d 344, 346 (7th Cir. 2010), cert. denied,
131 S. Ct. 1568 (2011), citing 28 U.S.C. § 2412(d)(1)(A). As the Court
previously concluded, the Commissioner’s decision was not substantially
justified. No special circumstances make an award of fees and costs unjust in
this case.
The law of this Circuit further provides that an award of fees under the
EAJA is payable to the litigant, not the lawyer. Wickens v. Shell Oil Co., 620
F.3d 747, 752 (7th Cir. 2010). See also Astrue v. Ratliff, 130 S. Ct. 2521
(2010). An exception is made to this rule if the plaintiff assigned his claim to a
fee award to his lawyer in advance. See Mathews-Sheets v. Astrue, 653 F.3d
560, 565 (7th Cir. 2011).
Here, the joint stipulation provides that the award of EAJA fees and
expenses shall be made to Plaintiff (Doc. 25, p. 1).

The stipulation further

states that, after the award is made, “if counsel for the parties can verify that

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Plaintiff owes no pre-existing debt subject to offset, the Defendant agrees to
direct that the award be made payable to Plaintiff’s attorney pursuant to the
EAJA assignment duly signed by Plaintiff and counsel” (Doc. 25, p.1).
Pursuant to the joint stipulation (Doc. 25) and 28 U.S.C. § 2412, the
Court hereby AWARDS Plaintiff Diana Russell $3750.00 in attorneys’ fees
and expenses, plus $350.00 in costs. (The $350.00 in costs shall be paid
from the Judgment Fund administered by the United States Treasury.)
This Order RENDERS MOOT the motion for fees and costs (Doc. 23).
IT IS SO ORDERED.
September 14, 2012.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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