Sargent v. Commissioner of Social Security

Filing 19

ORDER granting 17 Motion for Attorney Fees. Judgment will enter for plaintiff in the amount of $2,462.50, representing attorney fees to be paid by the Social Security Administration. Signed by Magistrate Judge Leonard T Strand on 7/8/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DONALD C. SARGENT,
Plaintiff,

No. C12-4093-LTS

vs.

ORDER

CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
____________________
This case is before me on plaintiff=s application (Doc. No. 17) for attorney fees
under the Equal Access to Justice Act (AEAJA@), 28 U.S.C. ' 2412(d). On May 21,
2013, I entered an order (Doc. No. 15) granting the parties’ joint motion for remand
pursuant to sentence four of 42 U.S.C. § 405(g). Judgment (Doc. No. 16) in favor of
the plaintiff and against defendant (the Commissioner) was entered the same day.
Plaintiff now requests $2,462.50 in attorney fees for his attorney=s work on the case and
alleges that the Commissioner’s position was not substantially justified. In support of
his application, plaintiff attached an itemization (Doc. No. 17-1) of the time plaintiff=s
attorney spent on the case. According to that document, his attorney spent a total of
19.7 hours on this matter and seeks to be paid at the rate of $125 per hour.
On July 3, 2013, the Commissioner filed her response (Doc. No. 18) to
plaintiff=s application. The Commissioner indicates she has no objection to entry of an
order awarding attorney fees under EAJA in the amount of $2,462.50.
DISCUSSION
A.

Legal Standards
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 Aspecial 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 Athe denial of fees to
counsel whose efforts brought about the Secretary=s change of position is unjust@). The
Eighth Circuit has specifically addressed, however, 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.
Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005) (citations omitted); see Lauer,
321 F.3d at 765 (recognizing Athe 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) (ATo be substantially
justified, the [Commissioner] must show that [his] position was >justified to a degree
that could satisfy a reasonable person.=@ (quoting Pierce v. Underwood, 487 U.S. 552,
565, 108 S. Ct. 2541, 2550 (1988))).
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To obtain an award, the party must apply for the award Awithin thirty days of
final judgment in the action@ and Aallege that the position of the United States was not
substantially justified.@ 28 U.S.C. ' 2412(d)(1)(B). A[T]he provision=s 30-day deadline
for fee applications and its application-content specifications are not properly typed
>jurisdictional,=@ but instead are Aancillary to the judgment of a court.@ Scarborough v.
Principi, 541 U.S. 401, 413-14, 124 S. Ct. 1856, 1864-65 (2004). The government,
therefore, can 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, Awhere . . . 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@). Further, A[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. See Astrue v. Ratliff, 130 S. Ct. 2521, 2525-27 (2010). As such,
those fees are subject to offset to satisfy any pre-existing debt the litigant may owe to
the United States. Id. at 2527.

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B.

Analysis
I find that plaintiff is a Aprevailing party@ and the Commissioner, by not

objecting to the payment of attorney fees, has not shown either Asubstantial”
justi[fication]@ or Aspecial circumstances@ to preclude an award of reasonable attorney
fees. 28 U.S.C. ' 2412(d)(1)(A). I also find that plaintiff timely filed his application
for attorney fees within thirty days of the final judgment in this action.
Upon review of the exhibit attached to plaintiff’s application, which includes an
itemization of the hours his attorney logged for this case, I further find that the
requested hourly rate ($125) and the total number of hours expended (19.7) are
reasonable and appropriate under the circumstances.

As such, I find plaintiff has

demonstrated that he is entitled to an award of attorney fees in the amount of
$2,462.50.

Because the EAJA payment shall be made to the litigant, rather than

directly to the litigant=s attorney, I will order that the fees be paid to plaintiff. See
Ratliff, 130 S. Ct. at 2525-27.
CONCLUSION
Plaintiff=s application for attorney fees (Doc. No. 17) is granted. Judgment will
enter for plaintiff in the amount of $2,462.50, representing attorney fees to be paid by
the Social Security Administration.

Pursuant to Ratliff, said fees are payable to

plaintiff.
IT IS SO ORDERED.
DATED this 8th day of July, 2013.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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