Higginbottom v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order granting in part and denying in part 21 Motion for Attorney Fees. See order text for details. Signed by Judge Mark W Bennett on 03/26/2012. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BRIAN L. HIGGINBOTTOM,
Plaintiff,
No. C 11-4009-MWB
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND
ORDER REGARDING MOTION FOR
ATTORNEY FEES PURSUANT TO
28 U.S.C. § 2412(d)(1)(B) (EQUAL
ACCESS TO JUSTICE ACT)
____________________
I. INTRODUCTION
This case comes before me on plaintiff Brian L. Higginbottom’s February 27, 2012,
Motion For Attorney Fees Pursuant To 28 U.S.C. § 2412(d)(1)(B) (Equal Access To
Justice Act) (docket no. 21). I reversed and remanded this case for further proceedings
on February 27, 2012, after concluding that the Commissioner’s decision that
Higginbottom was not disabled was neither supported by substantial evidence nor based
on proper legal standards (docket no. 19). That same day, the Clerk of Court entered
judgment in favor of Higginbottom.
In his pending motion, Higginbottom requests $5,216.80 in attorney fees under the
Equal Access to Justice Act (EAJA). Higginbottom includes as exhibits an itemization of
hours that his attorney, Gregory Peterson, worked on this case; a consumer price index
to assist in calculating cost of living increases; and an attorney fee contract, in which
Higginbottom assigned any fees awarded under the EAJA to his attorney. Higginbottom’s
attorney worked 28.7 hours on this case and has adjusted his requested hourly rate from
the statutory rate of $125 upward to $181.77 due to cost of living increases. Higginbottom
asks that any EAJA attorney fees be paid directly to his attorney, pursuant to his attorney
fee contract. The Commissioner has no objection to Higginbottom’s requested fees.
II. ANALYSIS
“[F]ees and other expenses” may be awarded to a “prevailing party” in a Social
Security appeal under the Equal Access To Justice Act (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) (emphasis added). 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 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); 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 in the case)], enhanced fees should be
awarded.”).
Here, Higginbottom is the clear prevailing party and timely filed his motion for
attorney fees. He alleges in his motion that the “position of the Commissioner was not
substantially justified,” docket no. 21 at 1, and I agree. Moreover, the Commissioner does
not object to the award of fees in this case or to Higginbottom’s requested fees. Thus, I
find that attorney fees under the EAJA are just and appropriate here. I also find that
Higginbottom’s requested sum of $5,216.80 is reasonable for 28.7 hours of work. By
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submitting the consumer price index, Higginbottom has “present[ed] uncontested proof of
an increase in the cost of living sufficient to justify hourly attorney’s fees” over the
statutory rate of $125, for an adjusted hourly rate of $188.77. See Johnson, 919 F.2d at
505.
As to who shall receive the attorney fees, Higginbottom or his attorney, the United
States Supreme Court recently held that attorney fees under 28 U.S.C. § 2412(d) are
payable to the litigant, not directly to the litigant’s attorney, and are thus subject to an
offset if the litigant has outstanding debts to the United States. See Astrue v. Ratliff,
___U.S. ___, 130 S. Ct. 2521, 2524-26 (2010). Higginbottom, nonetheless, requests that
EAJA fees be paid directly to his attorney, pursuant to his attorney fee contract, in which
he assigned any EAJA fees to his attorney. The Commissioner responds that, following
entry of an EAJA award, he will ask the Department of Treasury whether Higginbottom
owes a debt to the United States and, if not, will request that Higginbottom’s attorney be
paid directly, pursuant to the attorney fee contract. The Commissioner maintains that
Ratliff “acknowledg[ed] and implicitly approv[ed] the continuation of[] ‘the direct payment
practice [to plaintiff’s counsel] only in cases where the plaintiff does not owe a debt to the
government and assigns the right to receive the fees to his attorney.’” Commissioner’s
Response at 2 (docket no. 22) (quoting Ratliff, 130 S. Ct. at 2529).
The Eighth Circuit Court of Appeals has not had occasion to consider this issue
since the Court’s decision in Ratliff, but several district courts in this circuit have read
Ratliff to permit courts to award fees directly to the litigant’s attorney, subject to offset for
the litigant’s debt to the United States, where a litigant has assigned any EAJA fees to her
attorney. See, e.g., Sahs v. Astrue, ___ F. Supp. 2d ___, No. 4:10CV3161, 2011 WL
6302891, at *3 (D. Neb. Dec. 16, 2011) (“Because Sahs expressly authorized direct
payment to his attorney, . . . I will order that payment be made directly to Sahs’ attorney,
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after an offset is made for any pre-existing debt owed by Sahs to the United States”);
Johnson v. Astrue, No. CIV 10-4052-RAL, 2011 WL 4458850, at *10 (D.S.D. 2011 Sept.
23, 2011) (“Paying the fee award, minus any offset, directly to [plaintiff’s] attorney, in
accordance with [plaintiff’s] intent, is not inconsistent with Ratliff. Indeed, by honoring
[plaintiff’s] instructions, this Court recognizes that the fee award belongs to [plaintiff].”);
Meyer v. Astrue, Civ. No. 09-3205 (MJD/LIB), 2011 WL 4036398, at *3 (D. Minn. Aug.
25, 2011). Other courts in this circuit, however, have determined that, pursuant to Ratliff,
a court must award fees to the litigant, not the litigant’s attorney, no matter if the litigant
has assigned fees to her attorney. See, e.g., Wilson v. Astrue, No. 4:10CV01759 AGF,
2011 WL 6945163, at *1 (E.D. Mo. Dec. 30, 2011) (“The Court . . . believes that the
better practice is to follow the Supreme Court’s directive in Ratliff that under the EAJA,
an award of attorney’s fees be made to the ‘prevailing party.’”); Rathke v. Astrue, No.
CIV. 08-5084-JLV, 2010 WL 3353380, at *3 (D.S.D. Aug. 23, 2010) (awarding fees to
plaintiff under Ratliff, despite fee agreement in which plaintiff assigned any EAJA fees to
his attorney).
I do not interpret Ratliff to allow me to award fees directly to a litigant’s attorney,
even where the litigant has assigned EAJA fees to her attorney. While the Ratliff Court
did acknowledge the government’s practice of paying EAJA fees directly to a litigant’s
attorney, where the litigant owed no debts to the United States and had assigned her EAJA
fees to her attorney, the Court concluded that this practice did not alter its conclusion that
the EAJA directs courts to award fees to litigants, not litigant’s attorneys—and thus
rejected Ratliff’s argument to the contrary. See Ratliff, 130 S. Ct. at 2529 (“[N]othing
about the Government’s past payment practices altered the statutory text that governs this
case . . . .”); see also Wilson, 2011 WL 6945163, at *1 (“The Court disagrees with the
interpretation of Ratliff espoused by the parties. In its decision, the Supreme Court stated
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that the Government’s history of paying EAJA awards directly to attorneys where the
plaintiff did not have federal debt and where the plaintiff had assigned the right to receive
the fees to the attorney did not change the Supreme Court’s interpretation of the EAJA
requiring that an award of attorney’s fees be made directly to the ‘prevailing party.’”
(quoting Ratliff, 130 S. Ct. at 2529)). A litigant’s assignment of fees to her attorney does
not permit a court to circumvent Ratliff’s conclusion that a court must award EAJA fees
to the litigant, as the Ratliff Court made clear when discussing an attorney’s contractual
rights to EAJA fees: “The fact that the statute awards to the prevailing party fees in which
her attorney may have a beneficial interest or a contractual right does not establish that the
statute ‘awards’ the fees directly to the attorney.” See Ratliff, 130 S. Ct. at 2526; see also
id. at 2529-30 (Sotomayor, J., concurring) (“I join the Court’s opinion because I agree that
the text of the Equal Access to Justice Act (EAJA) and our precedents compel the
conclusion that an attorney’s fee award under 28 U.S.C. § 2412(d) is payable to the
prevailing litigant rather than the attorney. The EAJA does not legally obligate the
Government to pay a prevailing litigant’s attorney, and the litigant’s obligation to pay her
attorney is controlled not by the EAJA but by contract and the law governing that
contract.”).
Therefore, in accordance with Ratliff, I award $5,216.80 in EAJA fees, which is
subject to offset for any debts Higginbottom may owe to the United States and payable
directly to plaintiff Higginbottom. Nonetheless, if consistent with the Commissioner’s and
the Department of Treasury’s practice, the EAJA payment may be mailed to
Higginbottom’s attorney, Gregory Peterson. See, e.g., Theis v. Astrue, ___ F. Supp. 2d
___, No. 3:10CV00193 JLH, 2011 WL 5216544, at *4 (E.D. Ark. Nov. 2, 2011)
(directing that EAJA “award be made payable to the plaintiff . . . and mailed to [plaintiff’s
attorney], pursuant to the Commissioner’s standard method of issuing payment”).
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III. CONCLUSION
THEREFORE, Higginbottom’s Motion For Attorney Fees Pursuant To 28 U.S.C.
§ 2412(d)(1)(B) (Equal Access To Justice Act) (docket no. 21) is granted in part and
denied in part. Higginbottom’s motion is granted, to the extent that Higginbottom is
awarded $5,216.80 in attorney fees under the EAJA, which is subject to offset for any
debts Higginbottom may owe to the United States. Higginbottom’s motion is denied, to
the extent that his EAJA fees award is payable directly to plaintiff Higginbottom, not his
attorney. Nonetheless, if consistent with the Commissioner’s and the Department of
Treasury’s practice, the EAJA payment may be mailed to Higginbottom’s attorney,
Gregory Peterson.
IT IS SO ORDERED.
DATED this 26th day of March, 2012.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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