Davila v. Commissioner of Social Security
ORDER granting 22 Amended Motion for Attorney Fees and finding as moot 20 Motion for Attorney Fees. Plaintiff is hereby awarded attorney fees in the amount of $7,456.88, to be paid by the Social Security Administration. Signed by Chief Judge Leonard T Strand on 3/31/17. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
LORENNA MARIE DAVILA, o/b/o
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
ORDER REGARDING PLAINTIFF’S
MOTION FOR AN AWARD OF
This matter is before me on plaintiff’s motion (Doc. No. 20) and amended motion
(Doc. No. 22) for an award of attorney fees pursuant to the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d). On January 18, 2017, I entered an order (Doc. No. 18)
reversing and remanding the decision of the Commissioner of Social Security
(Commissioner). On January 24, 2017, plaintiff filed a motion (Doc. No. 20) requesting
an award of attorney fees in the amount of $9,611.51. Plaintiff submitted an itemization
of her attorney’s services and other materials in support of the motion (Doc. Nos. 20-1,
The Commissioner has filed a response (Doc. No. 21) agreeing to the hourly rates
put forth by plaintiff but objecting to the number of hours spent on various tasks as
reflected in the itemized services. Doc. No. 20-2. Based on those objections and the
corresponding reductions, the Commissioner indicates it has no objection to an award not
to exceed $7,456.88. Plaintiff has filed an amended motion (Doc. No. 22) stating that
while she does not agree with the Commissioner’s stated reasons for the deductions, she
agrees to reduce the request of attorney fees to $7,456.88.
Attorney fees may be awarded to a “prevailing 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.
28 U.S.C. § 2412(d)(1)(A). 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) (finding no special circumstances 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
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 “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
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 30-day
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 [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 over which the party prevails from any funds made available to the agency by
appropriation or otherwise.” 28 U.S.C. § 2412(d)(4). Attorney fees awarded under
EAJA are payable to the litigant, not directly to the litigant’s attorney. Ratliff, 560 U.S.
I find plaintiff is a “prevailing party” and the Commissioner 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 requested for attorney time are permissible pursuant to
28 U.S.C. § 2412(d)(2)(A)(ii)1 and that the total reduced hours as recommended by the
Commissioner and adopted by plaintiff in her amended motion are reasonable. Thus, I
find plaintiff’s amended request for an award of fees in the amount of $7,456.88 to be
reasonable and appropriate. Plaintiff is entitled to an EAJA award in the amount of
$7,456.88, to be paid by the Social Security Administration.
The EAJA award shall be made payable to plaintiff and is subject to offset to
satisfy any pre-existing debt plaintiff may owe to the United States. Ratliff, 560 U.S. at
593. Nonetheless, plaintiff requests that it be delivered to her attorney. Doc. No. 22.
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).
Based on the foregoing, plaintiff’s original motion (Doc. No. 20) for an award of
attorney fees in the amount of $9,611.51 under the Equal Access to Justice Act is denied
as moot. Plaintiff’s amended motion (Doc. No. 22) for an award of attorney fees in the
amount of $7,456.88 under the Equal Access to Justice Act is granted. Plaintiff is hereby
Plaintiff has demonstrated that an increase in the cost of living justifies hourly rates in excess
of $125. See Doc. No. 20-1.
awarded attorney fees in the amount of $7,456.88, to be paid by the Social Security
Administration. If consistent with the Commissioner’s and the Department of Treasury's
practices, the EAJA payment may be mailed to plaintiff’s attorney.
IT IS SO ORDERED.
DATED this 31st day of March, 2017.
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE
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