Fett v. Commissioner of Social Security

Filing 22

ORDER granting 20 Motion for Attorney Fees. Fett is awarded $4,4696.17 in attorney's fees pursuant to EAJA. Fett is also awarded $400.00 in costs to be paid from the Judgment Fund as reimbursement of the filing fee. Signed by Judge Mark W Bennett on 3/14/16. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
VICKIE (NICHOLS) FETT,
No. C 14-3034-MWB
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

ORDER REGARDING PLAINTIFF’S
APPLICATION FOR ATTORNEY’S
FEES PURSUANT TO THE EQUAL
ACCESS TO JUSTICE ACT (EAJA)

___________________________
This case is before me on plaintiff Vickie Fett’s January 13, 2016, Application
For Attorneys Fees Under The Equal Access To Justice Act (docket no. 20). Fett’s
Application follows my October 15, 2015, Order (docket no. 18), in which I reversed
the Commissioner’s decision determining that Fett was not disabled, and remanded Fett’s
claim to the Commissioner for further proceedings. On October 15, 2015, the Clerk of
Court entered Judgment (docket no. 19) accordingly.
In her present Application, Fett seeks an award of $4,696.17 in attorney’s fees
pursuant to the Equal Access To Justice Act (EAJA), 28 U.S.C. § 2412, and requests
that, after any offset, the fees be delivered to her attorney. She also requests $400 from
the Judgment Fund for reimbursement of the filing fee. On February 11, 2016, the
Commissioner filed a Response (docket no. 21), stating that the Commissioner has no
objection to Fett’s request for attorney’s fees under the EAJA in the amount of $4,696.17.
The Commissioner requests, however, that the order specifically award attorney’s fees
to be paid by the Social Security Administration and costs of $400 from the Judgment
Fund. The Commissioner also requests that, in accordance with Astrue v. Ratliff, 560

U.S. 586 (2010), the fees be made payable to Fett, as the litigant, subject to offset to
satisfy any pre-existing debt that Fett owes to the United States.
“[F]ees and other expenses” may be awarded to a “prevailing party” in a Social
Security appeal under the 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). 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’s 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).
Here, the Commissioner disputes neither Fett’s entitlement to attorney’s fees under
the EAJA, nor the hourly rates requested by Fett ($188.51 per hour for 3 hours, $190.29
per hour for 2 hours, and $125.00 per hour for 30 hours), nor the total of $4,696.17 for
attorney’s fees. I also find that an award of attorney’s fees, pursuant to the EAJA, in the
amount of $4,696.17 is just and appropriate. Thus, the only question is whether the
award should be paid to Fett or her attorney. In Astrue v. Ratliff, the United States
Supreme Court held that, under the EAJA, awards of statutory attorney’s fees must be
payable to the prevailing Social Security plaintiff, not to her attorney. 560 U.S. 586,
130 S. Ct. 2521, 2529 (2010). However, if it is consistent with the Commissioner’s and
the Department of Treasury’s practice, the EAJA payment may be mailed to Fett’s
attorney, Thomas A. Krause. See, e.g., Theis v. Astrue, 828 F. Supp. 2d 1006, 1011
(E.D. Ark. 2011) (directing that EAJA “award be made payable to the plaintiff . . . and
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mailed to [plaintiff’s attorney], pursuant to the Commissioner’s standard method of
issuing payment”).
THEREFORE, Vickie Fett’s January 13, 2016, Application For Attorneys Fees
Under The Equal Access To Justice Act (docket no. 20) is granted, as follows:
1.

Fett is awarded $4,696.17 in attorney’s fees pursuant to the EAJA, see 28

U.S.C. § 2412;
2.

The fee award shall be paid by the Social Security Administration, see 28

U.S.C. § 2412(d)(4);
3.

The fee award shall be made payable to plaintiff Fett, but, if it is consistent

with the Commissioner’s and the Department of Treasury’s practice, the EAJA payment
may be mailed to Fett’s attorney, Thomas A. Krause;
4.

Fett is also awarded $400 in costs to be paid from the Judgment Fund as

reimbursement of the filing fee.
IT IS SO ORDERED.
DATED this 14th day of March, 2016.

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

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