Stout v. Commissioner of Social Security

Filing 23

ORDER granting 20 Motion for Attorney Fees in the amount of $7,357.20. Signed by Judge Leonard T Strand on 10/27/2016. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
MARJORIE STOUT,
Plaintiff,

No. C14-3037-LTS

vs.

ORDER REGARDING PLAINTIFF’S
APPLICATION FOR AN AWARD OF
ATTORNEY FEES

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

____________________
I.

INTRODUCTION

This matter is before me on plaintiff’s application (Doc. No. 20) for an award of
attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).
On August 19, 2016, I entered an order (Doc. No. 18) reversing and remanding the
decision of the Commissioner of Social Security (Commissioner). Plaintiff now requests
an award of attorney fees in the amount of $7,357.22.

Plaintiff has submitted a

declaration and other materials in support of the motion (Doc. No. 20-1). She also
requests $350.00 from the judgment fund to reimburse filing fees.
The Commissioner has filed a response (Doc. No. 21) stating that she has no
objection to entry of an EAJA award, to be paid by the Social Security Administration,
and asks that the award be made payable to plaintiff so it will be subject to offset to satisfy
any pre-existing debt plaintiff may owe to the United States. Doc. No. 21 at 2 (citing
Astrue v. Ratliff, 560 U.S. 586 (2010)).

However, the Commissioner notes a

multiplication error in the plaintiff’s fee calculations and states that the plaintiff is actually
entitled to an award of $7,357.20 (a difference of two cents).1 Finally, the Commissioner
The Commissioner is correct. In the plaintiff’s summary fee request sheet (Doc. No. 20-1 at
1), the plaintiff states that a rate of $190.05 over eight hours equals $1,520.42, while the
correct total is $1,520.40.
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contends plaintiff is not entitled to a filing fee reimbursement because she was granted in
forma pauperis status (Doc. No. 2) and did not pay a filing fee. Plaintiff has filed a reply
withdrawing the filing fee claim. Doc. No. 22.
II.
A.

DISCUSSION

Legal Standards
Attorney fees may be awarded to a “prevailing party” in a Social Security appeal

under 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 “special circumstances.” See Koss v. Sullivan,
982 F.2d 1226, 1229 (8th Cir. 1993) (finding no special circumstances but stating “the
denial of fees to counsel whose efforts brought about the Secretary’s change of position
is unjust”). The Eighth Circuit has, however, specifically addressed 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.
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Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005) (citations omitted); see Lauer,
321 F.3d at 765 (recognizing “the 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) (“To 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
(1988))).
To obtain an EAJA 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). However, “the provision’s 30-day
deadline for fee applications and its application-content specifications are not properly
typed ‘jurisdictional,’” but instead are “ancillary to the judgment of a court.”
Scarborough v. Principi, 541 U.S. 401, 413-14 (2004). The government may 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 2006).
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, “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 at the time], enhanced fees should be
awarded”). Further, “[f]ees and other expenses awarded under [subsection (d)] to a party
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shall be paid by any agency over which the party prevails from any funds made available
to the agency by appropriation or otherwise.” 28 U.S.C. § 2412(d)(4). Attorney fees
awarded under EAJA are payable to the litigant, not directly to the litigant’s attorney.
Ratliff, 560 U.S. at 591-94.
B.

Analysis
I find plaintiff is a “prevailing party” and the Commissioner, by not objecting to

the payment of the requested award (as corrected above), has not shown either
“substantial[] justi[fication]” or “special circumstances” to preclude an award of
reasonable attorney fees.

28 U.S.C. § 2412(d)(1)(A).

I further find plaintiff has

established that the hourly rates requested for attorney time are permissible pursuant to
28 U.S.C. § 2412(d)(2)(A)(ii)2 and that the total hours requested are reasonable. Thus,
I find plaintiff’s request for an award of fees to be reasonable and appropriate. Plaintiff
is entitled to an EAJA award in the amount of $7,357.20, to be paid by the Social Security
Administration.
The EAJA award shall be made payable to plaintiff and is subject to offset to
satisfy any pre-existing debt plaintiff may owe to the United States. Ratliff, 560 U.S. at
593. Nonetheless, plaintiff requests that it be delivered to her attorney. Doc. No. 20 at
2. This court has previously found that such a request is appropriate if it is consistent
with the Commissioner's and the Department of Treasury's practices. Kunik v. Colvin,
No. C13–3025–LTS, 2014 WL 1883804, at *3 (N.D. Iowa May 12, 2014); Tracy v.
Colvin, No. C11–3072–MWB, 2013 WL 1213125, at *2 (N.D. Iowa Mar. 25, 2013).

2

Plaintiff has demonstrated, by declaration and other evidence, that an increase in the cost of
living justifies hourly rates in excess of $125. See Doc. No. 20-1 at 6-7.

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III.

CONCLUSION

Based on the foregoing, plaintiff’s application (Doc. No. 20) for an award of
attorney fees under the Equal Access to Justice Act is granted. Plaintiff is hereby
awarded attorney fees in the amount of $7,357.20, to be paid by the Social Security
Administration. If consistent with the Commissioner’s and the Department of Treasury's
practices, the EAJA payment may be mailed to plaintiff’s attorney.
IT IS SO ORDERED.
DATED this 27th day of October, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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