Horst v. Commissioner of Social Security

Filing 28

ORDER granting 26 Motion for Attorney Fees: EAJA attorney fees in the amount of $14,512.25 are payable to the plaintiff, by the Social Security Administration, and mailed to plaintiffs attorneys address after any offset. Plaintiffs counsel is ordered to refund to plaintiff the sum of $5,950.52. Signed by Chief Magistrate Judge CJ Williams on 1/3/2018. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
NICHOLAS D. HORST,
Plaintiff,

No. 15-CV-3153-CJW

vs.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
____________________
This matter is before the Court pursuant to plaintiff’s Motion for Attorney’s Fees
Pursuant to 42 U.S.C. § 406(b), filed on December 5, 2017, (Doc. 26), requesting
attorney fees in the amount of $14,512.25. Plaintiff attached an exhibit to the application
(Doc. 26-1).
In response, defendant filed Defendant’s Response To Plaintiff’s Motion for
Attorney Fees Under 42 U.S.C. § 406(b), (Doc. 27) stating defendant has no objection
to plaintiff’s request for attorney fees under the EAJA in the amount of $14,512.25. In
accordance with Astrue v. Ratliff, 560 U.S. 586 (2010), the EAJA fee is payable to
plaintiff as the litigant and may be subject to offset to satisfy a pre-existing debt that the
litigant owes to the United States.
Although the Court is aware that the Government and the SSA have a practice of
paying some EAJA fee awards directly to attorneys in Social Security cases, the Court is
persuaded that the attorney fee award shall be made payable to plaintiff as the “prevailing
party.” The statute setting forth the standard for “prevailing party” fees “makes clear
that the “prevailing party” (not her attorney) is the recipient of the fees award by

1

requiring the prevailing party to demonstrate that her net worth falls within the range the
statute request for fees awards.” Ratliff, 560 U.S. at 594.
28 U.S.C. § 2412(d), provides:
A court shall award to a prevailing party . . . fees and other
expenses . . . in any civil action . . . brought by or against
the United States . . . unless the court finds that the position
of the United States was substantially justified.
Id. The Court is aware in some cases a fee agreement between the plaintiff and his/her
lawyer may exist, where plaintiff has assigned his/her fee award to his/her attorney. The
Court is bound, however, to enforce the statutes passed by Congress. The fee agreement
is between plaintiff and his/her attorney, and the Court will not disturb or enforce the
provisions of the agreement when awarding EAJA fees based upon the provisions of a
statute. However, the check made payable to the plaintiff may be delivered to plaintiff’s
attorney. 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).
28 U.S.C. § 2412(d) of the EAJA provides for the award of fees and expenses if:
(1) the party requesting the fees prevailed; (2) the position of the United States was not
“substantially justified;” (3) the fees were incurred by the moving party in a “civil action
. . . including proceedings for judicial review of agency action;” (4) the action was
brought by or against the United States; (5) the court entering the ruling had “jurisdiction
of that action;” (6) the party seeking fees submitted an application 30 days after final
judgment, specifying the “amount sought, including an itemized statement . . . stating
the actual time expended and the rate at which fees and other expenses were computed;”
(7) the amount sought is reasonable under the circumstances; and (8) there are no “special

2

circumstances” making “an award unjust.” (citation omitted).
In this case, plaintiff has satisfied each necessary element. Plaintiff prevailed in a
civil action against the Commissioner of Social Security. This Court properly exercised
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner was not
substantially justified in that the overwhelming weight of the evidence supported the
conclusion that the Commissioner’s decision should be remanded for further
consideration. Plaintiff’s request for attorney’s fees included an itemized statement of
the actual time expended (Doc.26-1). Neither the Commissioner nor this Court consider
the amount agreed upon by the parties to be unreasonable under the circumstances. And,
finally, this Court is unaware of any special circumstances which would render the award
unjust.
Therefore, attorney fees under EAJA are granted in the agreed upon amount of
$14,512.25, payable to the plaintiff, by the Social Security Administration, and mailed
to plaintiff’s attorney’s address after any offset. As plaintiff acknowledged, however,
this Court previously awarded plaintiff attorney’s fees in the amount of $5,950.52
pursuant to the Equal Access to Justice Act (“EAJA”). (Doc. 26, at 1). When a court
awards a plaintiff’s attorney fees under both EAJA and § 406(b), the attorney must refund
the amount of the smaller fee received to the plaintiff. See Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002). Therefore, plaintiff’s counsel is ordered to refund to plaintiff the
sum of $5,950.52.
IT IS SO ORDERED this 3rd day of January, 2018.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

3