King v. Commissioner of Social Security
ORDER granting 25 Motion for Attorney Fees. Judgment will enter for plaintiff, Tana King, in the amount of $3,696.83, representing attorney fees and expenses to be paid by the Social Security Administration. Signed by Magistrate Judge Leonard T Strand on 6/18/14. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
ORDER REGARDING PLAINTIFF’S
MOTION FOR AN AWARD OF
ATTORNEY FEES AND OTHER
This matter is before me on plaintiff=s motion (Doc. No. 25) for an award of
attorney fees and other expenses under the provisions of the Equal Access to Justice Act
(EAJA), 28 U.S.C. ' 2412(d). On April 4, 2014, I entered an order (Doc. No. 23) that
reversed and remanded the decision of the Commissioner of Social Security
Plaintiff now requests $3,584.90 in attorney fees, along with
reimbursement for expenses in the amount of $111.93, for a total request of $3,696.83.
Plaintiff has submitted affidavits and other materials in support of her motion.
On June 17, 2014, the Commissioner filed her response (Doc. No. 28) to plaintiff=s
motion. The Commissioner indicates she has no objection to entry of an EAJA award
in the amount of $3,696.83, to be paid by the Social Security Administration. The
Commissioner notes that the EAJA award is payable to plaintiff, not to plaintiff’s counsel,
and that it is therefore subject to offset to satisfy any pre-existing debt plaintiff may owe
to the United States. Doc. No. 28 at 1 (citing Astrue v. Ratliff, 560 U.S. 586 (2010)).
Attorney fees may be awarded to a Aprevailing party@ in a Social Security appeal
under the EAJA. 28 U.S.C. ' 2412(d). The statute provides as follows:
Except as otherwise specifically provided by statute, a court shall award to
a prevailing party other than the United States fees and other expenses, in
addition to any costs awarded pursuant to subsection (a), incurred by that
party in any civil action (other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by or against the
United States in any court having jurisdiction of that action, unless the court
finds that the position of the United States was substantially justified or that
special circumstances make an award unjust.
Id. ' 2412(d)(1)(A) (emphasis added). The Eighth Circuit Court of Appeals has had
little occasion to elaborate on what constitutes Aspecial circumstances.@
See Koss v.
Sullivan, 982 F.2d 1226, 1229 (8th Cir. 1993) (looking to see whether special
circumstances make an award unjust, and finding none, but stating Athe denial of fees to
counsel whose efforts brought about the Secretary=s change of position is unjust@). The
Eighth Circuit has specifically addressed, however, when a position is substantially
justified. See, e.g., Lauer v. Barnhart, 321 F.3d 762, 764-65 (8th Cir. 2003); Cornella
v. Schweiker, 728 F.2d 978, 981-82 (8th Cir. 1984).
A position enjoys substantial justification if it has a clearly reasonable basis
in law and fact. Accordingly, the Commissioner can advance a losing
position in the district court and still avoid the imposition of a fee award as
long as the Commissioner=s position had a reasonable basis in law and fact.
Further, a loss on the merits by the Commissioner does not give rise to a
presumption that [he or] she lacked substantial justification for [his or] her
position. The Commissioner does, however, at all times bear the burden
to prove substantial justification.
Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005) (citations omitted); see Lauer,
321 F.3d at 765 (recognizing Athe overriding, fundamental principal [sic] that the
government=s position must be well founded in fact to be substantially justified@); Sawyers
v. Shalala, 990 F.2d 1033, 1034 (8th Cir. 1993) (ATo be substantially justified, the
[Commissioner] must show that her position was >justified to a degree that could satisfy
a reasonable person.=@ (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct.
2541, 2550 (1988))).
To obtain an award, the party must apply for the award Awithin thirty days of final
judgment in the action@ and Aallege that the position of the United States was not
28 U.S.C. ' 2412(d)(1)(B).
A[T]he provision=s 30-day
deadline for fee applications and its application-content specifications are not properly
typed >jurisdictional,=@ but instead are Aancillary to the judgment of a court.@
Scarborough v. Principi, 541 U.S. 401, 413-14, 124 S. Ct. 1856, 1864-65 (2004). The
government, therefore, can waive this requirement because it is present to protect the
government=s interests. See Vasquez v. Barnhart, 459 F. Supp. 2d 835, 836 (N.D. Iowa
If attorney fees are appropriate, the reasonable hourly rate for such fees is
established by statute as follows:
[A]ttorney 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.
28 U.S.C. ' 2412(d)(2)(A)(ii); see Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.
1990) (holding that, Awhere . . . 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
Further, A[f]ees and other expenses awarded under [subsection (d)] to a
party shall be paid by any agency [(the Social Security Administration)] over which the
party prevails from any funds made available to the agency by appropriation or
otherwise.@ 28 U.S.C. ' 2412(d)(4). Under ' 2412(d), attorney fees are payable to
the litigant, not directly to the litigant=s attorney. See Ratliff, 560 U.S. at 591-94.
Filing fees and other costs may also be awarded under EAJA to plaintiffs who
prevail in Social Security cases. Section 2412 provides as follows:
Except as otherwise specifically provided by statute, a judgment for costs,
as enumerated in section 1920 of this title, but not including the fees and
expenses of attorneys, may be awarded to the prevailing party in any civil
action brought by or against the United States or any agency or any official
of the United States acting in his or her official capacity in any court having
jurisdiction of such action. A judgment for costs when taxed against the
United States shall, in an amount established by statute, court rule, or order,
be limited to reimbursing in whole or in part the prevailing party for the
costs incurred by such party in the litigation.
28 U.S.C. ' 2412(a)(1). AFees of the clerk@ and A[f]ees for exemplification and the costs
of making copies of any materials where the copies are necessarily obtained for use in
the case@ may be Atax[ed] as costs.@ Id. ' 1920(1), (4).
I find plaintiff is a Aprevailing party,@ and the Commissioner, by not objecting to
the payment of the requested award, has not shown either Asubstantial justi[fication]@ or
Aspecial circumstances@ to preclude an award of reasonable attorney fees and costs. 28
U.S.C. ' 2412(d)(1)(A). I further find plaintiff has established that the hourly rates she
requests for attorney and paralegal time are permissible pursuant to 28 U.S.C. §
2412(d)(2)(A)(ii) and that the total hours requested are reasonable.
Thus, I find
plaintiff’s request for an award of fees in the amount of $3,584.90 to be reasonable and
appropriate. Finally, I find plaintiff has demonstrated that she is entitled to recover
expenses in the amount of $111.93. Plaintiff is, therefore, entitled to an EAJA award
in the total amount of $3,696.83, to be paid by the Social Security Administration. That
award shall be made payable to plaintiff, not to plaintiff’s counsel. See Ratliff, 560 U.S.
Based on the foregoing, plaintiff=s motion (Doc. No. 25) for an award of attorney
fees and other expenses under the provisions of the Equal Access to Justice Act is
granted. Judgment will enter for plaintiff in the amount of $3,696.83, representing
attorney fees and expenses to be paid by the Social Security Administration.
IT IS SO ORDERED.
DATED this 18th day of June, 2014.
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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