Kaufman v. Commissioner of Social Security
ORDER granting 18 Motion for Attorney Fees. Plaintiff is hereby awarded attorney fees in the amount of $6,098.51, to be paid by the Social SecurityAdministration. Signed by Judge Leonard T Strand on 9/21/16. (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
APPLICATION FOR AN AWARD OF
This matter is before me on plaintiff=s application (Doc. No. 18) for an award of
attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. ' 2412(d).
On June 16, 2016, I entered an order (Doc. No. 16) reversing and remanding a decision
of the Commissioner of Social Security (Commissioner) finding that plaintiff was not
disabled. Plaintiff now requests an award of attorney fees in the amount of $6,098.51.
She has submitted a declaration from her attorney and other materials in support of the
The Commissioner has filed a response (Doc. No. 20) stating that she has no
objection to entry of an EAJA award in the amount of $6,098.51, to be paid by the Social
Security Administration, but notes that the award is payable to plaintiff, not to plaintiff’s
counsel, and is therefore subject to offset to satisfy any pre-existing debt plaintiff may
owe to the United States. Doc. No. 20 at 1 (citing Astrue v. Ratliff, 560 U.S. 586
Attorney fees may be awarded to a Aprevailing 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) (looking to see whether special
circumstances make an award unjust, and finding none, 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
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 “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 30day 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 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. Ratliff, 560 U.S. at 591-94.
I find plaintiff is a “prevailing party” and the Commissioner, by not objecting to
the payment of the requested award, 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 she requests
are permissible pursuant to 28 U.S.C. § 2412(d)(2)(A)(ii) 1 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
$6,098.51, to be paid by the Social Security Administration. That award shall be made
payable to plaintiff, not to plaintiff’s counsel.
While plaintiff acknowledges that the award must be made payable to her, she
requests that it be delivered to her attorney after the offset of any pre-existing debt
plaintiff may owe to the United States. Doc. No. 18 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 practice.
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).
Based on the foregoing, plaintiff=s application (Doc. No. 18) 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 $6,098.51, to be paid by the Social Security
If consistent with the Commissioner’s and the Department of
Treasury's practice, the EAJA payment may be mailed to plaintiff’s attorney.
Plaintiff has demonstrated, by her attorney’s declaration and other evidence, that an increase
in the cost of living justifies hourly rates in excess of $125.
IT IS SO ORDERED.
DATED this 21st day of September, 2016.
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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