Phalakhone v. Commissioner of Social Security

Filing 23

ORDER granting 21 Motion for Attorney Fees. I award Phalakhone $5,342.85 in attorney's fees under the EAJA, which is subject to offset for any debts Phalakhone may owe to the United States. The fee award shall be paid by the Social Security Administration. Signed by Judge Mark W Bennett on 1/21/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BOUASAVANH PHALAKHONE,
No. C 12-4105-MWB
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,

ORDER REGARDING PLAINTIFF’S
APPLICATION FOR ATTORNEY’S
FEES

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on plaintiff Bouasavanh Phalakhone’s (Phalakhone’s)
application for attorney’s fees, which he filed on January 10, 2014 (docket no. 21).
Phalakhone’s application follows my December 9, 2013, order in which I accepted
Judge Strand’s Report and Recommendation, reversed the Commissioner of Social
Security’s (the Commissioner’s) decision denying Phalakhone disability benefits, and
remanded Phalakhone’s claim to the Commissioner for further consideration (docket
no. 19). The Clerk entered judgment in favor of Phalakhone on December 9, 2013
(docket no. 20).
In his application, Phalakhone requests $5,342.85 in attorney’s fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

In support of his

application, Phalakhone submits (1) a declaration from his attorney, Gretchen Jensen
(Jensen) (docket no. 21), and (2) an itemized billing record documenting the hours that
Jensen spent working on the case (docket no. 21).

The Commissioner filed a response to Phalakhone’s application on December 30,
2013 (docket no. 21). The Commissioner has no objection to Phalakhone’s request for
$5,342.85 in attorney’s fees.
II.

ANALYSIS

“[F]ees and other expenses” may be awarded to a “prevailing party” in a Social
Security appeal under the 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). A “final
judgment” is “a judgment that is final and not appealable . . . .”

28 U.S.C. §

2412(d)(2)(G). A judgment against the Commissioner is no longer appealable after 60
days. Fed. R. App. P. 4(a)(1)(B)(iii) (“The notice of appeal may be filed by any party
within 60 days after entry of the judgment or order appealed from if one of the parties
is . . . a United States officer or employee sued in an official capacity[.]”). Thus, a
judgment against the Commissioner becomes final 60 days after the Clerk enters that
judgment.
If attorney’s 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

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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, the parties do not dispute, and I find, that Phalakhone is a prevailing
party. I also find that the position of the United States was not substantially justified
because the Commissioner, who bears the burden of proving substantial justification,
does not claim that her position was substantially justified and instead agrees that
Phalakhone should receive an EAJA award. See Herman v. Schwent, 177 F.3d 1063,
1065 (8th Cir. 1999) (noting that the Commissioner bears the burden of proving
substantial justification). I find that the requested award under the EAJA is just and
appropriate; $5,342.85 is reasonable for 28.8 hours of work by Jensen (docket no. 1)
(noting that Jensen worked 28.8 hours on the case). I, therefore, grant Phalakhone’s
application for attorney’s fees in the amount of $5,342.85. In Astrue v. Ratliff, the
United States Supreme Court held that, under the EAJA, statutory attorney’s fees
awards must be payable to the prevailing social security plaintiff, not his attorney. 560
U.S. 586, 130 S. Ct. 2521, 2529 (2010). Thus, I find that Phalakhone’s award must be
payable directly to Phalakhone.
III.

CONCLUSION

THEREFORE, Phalakhone’s application for attorney’s fees under the EAJA
(docket no. 21) is granted. I award Phalakhone $5,342.85 in attorney’s fees under
the EAJA, which is subject to offset for any debts Phalakhone may owe to the United
States. The fee award shall be paid by the Social Security Administration. See 28
U.S.C. § 2412(d)(4) (“Fees and other expenses awarded under this subsection to a
party shall be paid by any agency over which the party prevails from any funds made
available to the agency by appropriation or otherwise.”).

If consistent with the

Commissioner’s and the Department of Treasury’s practice, the EAJA payment may be
mailed to Phalakhone’s attorney, Jensen. See, e.g., Theis v. Astrue, 828 F. Supp. 2d
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1006, 1011 (E.D. Ark. 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”).
IT IS SO ORDERED.
DATED this 21st day of January, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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