Lindstrom v. Commissioner of Social Security

Filing 25

ORDER granting 23 Motion for Attorney Fees to the extent that agreed amount of $2,631.08 and additional costs of $350.00 to be paid directly to Plaintiff. Signed by Judge Mark W Bennett on 6/28/2011. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

JOHN W. LINDSTROM,
Plaintiff,

No. C 09-3053-MWB

vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,

ORDER REGARDING
PLAINTIFF’S APPLICATION FOR
ATTORNEY FEES

Defendant.
____________________
This case comes before me pursuant to a Memorandum Opinion And Order
Regarding Magistrate Judge’s Report And Recommendation (docket no. 21) accepting
Chief Magistrate Judge Paul A. Zoss’s Report And Recommendation (docket no. 18),
entering judgment in favor of Lindstrom and against the Commissioner, and remanding
this case pursuant to sentence four of 42 U.S.C. § 405(g) for further development of the
record. On June 5, 2011, Lindstrom filed an Application For Attorneys Fees Under The
Equal Access To Justice Act (docket no. 23), seeking attorney fees, expenses, and costs
in the amount of $2,806.04, and further requesting $350.00 from the Judgment Fund,
administered by the United States Treasury, for reimbursement of the filing fee. See 28
U.S.C. § 2412(a). The Commissioner filed a Response (docket no. 24) on June 20, 2011,
advising the court that the parties have agreed to an award of attorney fees, expenses, and
costs and requesting that the court enter an order specifically awarding attorney fees and
expenses of $2,631.08 to be paid by the Social Security Administration to the plaintiff in

accordance with Astrue v. Ratliff, ___U.S. ___, 130 S. Ct. 2521 (2010), and costs of
$350.00 to be paid from the Judgment Fund.

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See 28 U.S.C. § 2412(a).

“[F]ees and other expenses” may be awarded to a “prevailing party” in a Social
Security appeal under the Equal Access To Justice Act (EAJA), “unless the court finds that
the position of the United States was substantially justified or that special circumstances
make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (emphasis added). For purposes of
this subsection, “fees and other expenses” include “reasonable attorney fees.” 28 U.S.C.
§ 2412(d)(2)(A) (emphasis added). In order to obtain an award, the party must apply for
the award “within thirty days of final judgment in the action” and “allege that the position
of the United States was not substantially justified.” 28 U.S.C. § 2412(d)(1)(B). If
attorney fees are appropriate, the reasonable hourly rate for such fees is set by statute at
$125, “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.” 28 U.S.C. § 2412(d)(2)(A)(ii); see Johnson v. Sullivan, 919 F.2d 503, 505
(8th Cir. 1990) (holding that “where . . . an EAJA petitioner presents uncontested proof
of an increase in the cost of living sufficient to justify hourly attorney’s fees of more than
$75 per hour [(the applicable statutory amount in the case)], enhanced fees should be
awarded.”). The United States Supreme Court recently held that attorney fees under
§ 2412(d) are payable to the litigant, not directly to the litigant’s attorney. See Astrue v.
Ratliff, ___ U.S. ___, 130 S. Ct. 2521 (2010).

1

Defendant contacted plaintiff’s counsel regarding a possible calculation error in
the plaintiff’s initial claim of $2,806.04 for attorney fees, expenses, and costs. Defendant
and plaintiff reached an agreement for an EAJA fee payment of $2,631.08. (docket no.
24)
2

Here, the parties do not dispute, and I find, that Lindstrom is a “prevailing party.”
See 28 U.S.C. § 2412(d)(1)(A).

The parties also do not dispute, and I find, that

Lindstrom’s fee application is timely. See 28 U.S.C. § 2412(d)(1)(B). Furthermore, the
parties do not dispute whether there are any circumstances making an award of attorney
fees unjust. See id. Upon review of Lindstrom’s counsel’s Declaration, attached to
Lindstrom’s Application, which contains an itemization of the hours that Lindstrom’s
counsel logged for this case, I find that an award of attorney fees and expenses in the
amount of $2,631.08 is reasonable and appropriate, see 28 U.S.C. § 2412(d)(2)(A), and
that it is supported by “uncontested proof of an increase in the cost of living” so that an
hourly rate in excess of the statutory rate is justified. See Johnson, 919 F.2d at 505; see
also 28 U.S.C. § 2412(d)(2)(A)(ii). Finally, because the Supreme Court has now made
clear that attorney fees under § 2412(d) are payable to the litigant, not directly to the
litigant’s attorney, see Ratliff, ___ U.S. at ___, 130 S. Ct. at 2525-26, I will direct
payment of the attorney fees to Lindstrom.
THEREFORE, Lindstrom’s Application For Attorneys Fees Under The Equal
Access To Justice Act (docket no. 23) is granted, to the extent that I award attorney fees
and expenses in the agreed amount of $2,631.08 and additional costs of $350.00, paid
directly to Lindstrom, not to his attorney. The Social Security Administration shall pay
$2,631.08 and the costs of $350.00 shall be paid from the Judgment Fund administered by
the United States Treasury.

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IT IS SO ORDERED.
DATED this 28th day of June, 2011.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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