Etling v. Commissioner of Social Security

Filing 22

ORDER granting 21 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 1/17/2017. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW ETLING,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

Civil No. 15-cv-598-CJP

ORDER
PROUD, Magistrate Judge:
This matter is before the Court on plaintiff’s Motion for Attorney Fees and
Costs under the Equal Access to Justice Act. (Doc. 21). Defendant has not filed
a response, and the time for doing so has now expired.
Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(A), the
Court shall award attorney’s fees and expenses to a prevailing party in a civil
action against the United States, including proceedings for judicial review of
agency action, unless the government’s position was substantially justified. The
hourly rate for attorney’s fees is not to exceed $125.00 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.” §2412(d)(2)(A). See also, Sprinkle v. Colvin, 777 F.3d 421 (7th Cir.
2015).
This case was remanded to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. §405(g).

Plaintiff is, therefore, the

prevailing party. See, Shalala v. Schaefer, 509 U.S. 292, 302 (1993).

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Counsel seeks to be paid for 17.8 hours at the rate of 125.00 per hour,
which totals $2,225.00. He does not seek any additional amount for expenses or
costs.
The Commissioner has not argued that her position was substantially
justified or challenged the appropriateness of the hourly rate or the number of
hours claimed.
The Court deems the failure to respond to plaintiff’s motion to be an
admission of the merits thereof. SDIL-LR 7.1. Accordingly, the Court finds that
plaintiff is entitled to an award of attorney’s fees pursuant to the EAJA, and that
the hourly rate and number of hours claimed are reasonable.
Plaintiff’s Motion for Attorney Fees and Costs under the Equal Access to
Justice Act (Doc. 21) is GRANTED. The Court awards plaintiff attorney’s fees in
the amount of $2,225.00 (two thousand, two hundred and twenty-five dollars),
with no additional amount for expenses or costs.
The amount awarded is payable to plaintiff and is subject to set-off for any
debt owed by plaintiff to the United States, per Astrue v. Ratliff, 560 U.S. 586
(2010).

However, any part of the award that is not subject to set-off to pay

plaintiff’s pre-existing debt to the United States shall be made payable to plaintiff’s
attorney if plaintiff’s attorney furnishes defendant with an EAJA assignment
executed by plaintiff.
IT IS SO ORDERED.
DATED: January 17, 2017.
s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE
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