Corns v. ssa
Filing
18
MEMORANDUM OPINION AND ORDER: 16 Motion for Attorney Fees is DENIED WITHOUT PREJUDICE. Signed by Judge Joseph M. Hood on 8/16/2011. (STB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
RITA ANN CORNS,
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) Civil Action No. 10-cv-415-JMH
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) MEMORANDUM OPINION AND ORDER
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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
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**
This Court granted Defendant’s Motion for Judgment and Remand
this action to the Commissioner of Social Security for further
administrative proceedings on May 25, 2011. [Record No. 14, 15].
Plaintiff's attorney has now filed a Motion for Attorney Fees
[Record No. 16] under the Equal Access to Justice Act ("EAJA"), 28
U.S.C. § 2412, as the prevailing party.
The United States has
filed a Response [Record No. 17].1 This motion is now ripe for decision.
This Court has previously held in a number of decisions,
however, that where an attorney does not demonstrate that the
claimant he or she represents is contractually obligated to pay
attorney fees for legal services performed as a result of a remand
for
further
1
administrative
proceedings,
neither
she
nor
her
Defendant does not object to the request for attorney fees.
[Record No. 17, p. 3 n.1]. Rather, Defendant argues that the Court
should deny Plaintiff’s request that attorney fees be awarded
directly to Plaintiff’s counsel. See generally id. As this Court
shall not award attorney fees under the EAJA, however, Defendant’s
argument shall not be addressed here.
attorney may seek an award for legal services under the EAJA. See
generally Turner v. Astrue, 764 F. Supp. 2d 864 (E.D. Ky. 2010);
see also Tracy v. Astrue, No. 09-cv-59-JMH, 2011 U.S. Dist. LEXIS
40915 (E.D. Ky. Apr. 14, 2011); Dauwe v. Astrue, 10-cv-83-ART, 2011
U.S. Dist. LEXIS 13407 (E.D. Ky. Feb. 8, 2011); Hodge v. Astrue,
No. 5:09-cv-416-DCR, 2010 U.S. Dist. LEXIS 110706 (E.D. Ky. Oct.
18, 2010); Wethington v. Astrue, No: 5:09-cv-284-ART, 2010 U.S.
Dist. LEXIS 96317 (E.D. Ky. Sept. 14, 2010).
In the present case, Plaintiff’s counsel has not demonstrated
that Plaintiff is contractually obligated to pay the attorney fees
sought through the present motion.
itemization
of
the
amount
of
Counsel has instead filed an
time
involved
in
litigating
Plaintiff’s appeal and justifications for the requested hourly
rate.
[Record No. 16, p. 7].
This document does not constitute
a contractual obligation to pay attorney fees.
Therefore, the
Court concludes that such fees have not been "incurred" under the
EAJA.
See generally Turner v. Astrue, 764 F. Supp. 2d 864 (E.D.
Ky. 2010).
Plaintiff’s argument that this Court should award attorney
fees under the EAJA regardless of whether she receives a benefit as
a result of her remand is misplaced.
Plaintiff correctly argues
that obtaining a sentence-four remand results in prevailing party
status as the plaintiff has succeeded on a significant issue in
litigation “which achieved some of the benefit . . . sought in
2
bringing suit.” Shalala v. Schaefer, 509 U.S. 292, 302 (1993); see
also Turner v. Astrue, No. 08-391, 2010 U.S. Dist. LEXIS 116238, at
*3
(E.D.
Ky.
Nov.
1,
2010)
(citation
omitted)
(“This
court
recognized that remanding [Plaintiff’s] case to the Commissioner
under sentence four made [Plaintiff] a prevailing party.”).
To
obtain benefits under the EAJA, however, a plaintiff must incur
attorney fees in addition to being a “prevailing party.” 28 U.S.C.
§ 2412. As Plaintiff has not shown a contractual obligation to pay
attorney fees to counsel for a successful remand, this Court holds
that Plaintiff, while being a “prevailing party,” has yet to show
that she has incurred attorney fees.
Furthermore, the Fifth Circuit’s ruling vacating Murkeldove v.
Astrue, 635 F. Supp. 2d 564 (N.D. Tex. 2009) vacated by Murkeldove
v. Astrue, 635 F.3d 784 (5th Cir. 2011), and the pending appeal of
Turner v. Astrue, 764 F. Supp. 2d 864, appeal docketed, No. 11-5012
(Jan. 5, 2011), has no impact on this Court’s decision.
In Turner
v. Astrue, the Eastern District of Kentucky Court “agreed with the
result reached in Murkeldove and with much of the Texas [district]
court’s reasoning” in denying attorney fees under the EAJA since no
fees were incurred in obtaining a sentence four remand.
Supp. 2d 864, 871 (E.D. Ky. 2010).
764 F.
Plaintiff argues since the
Fifth Circuit vacated the Northern District of Texas’s decision in
Murkeldove,
this
indicates
the
reasoning
applied
in
Turner
regarding when a plaintiff incurs fees was equally erroneous.
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Murkeldove, 635 F.3d 784; Turner, 764 F. Supp. 2d 864.
Plaintiff
also requests the Court hold this motion in abeyance pending the
appeal of Turner to the Sixth Circuit Court of Appeals. Turner, 764
F. Supp. 2d 864, appeal docketed, No. 11-5012 (Jan. 5, 2011).
The
Court, however, is not bound by the ruling from the Fifth Circuit
Court of Appeals nor does it base its ruling on either Murkeldove
or, for that matter, Turner.
Rather, this Court is ruling “in
accordance with [its] own view of the applicable law” and shall
dismiss Plaintiff’s Motion for Fees Under the EAJA.
See Berryhill
v. United States, 199 F.2d 217, 219 (6th Cir. 1952) (denying a Rule
60(b)(5) motion when a district court faced with an issue on which
there was a circuit court conflict entered a judgment without
reference to either of the circuit courts but similar to one
circuit court’s view of the law which was later reversed by the
Supreme Court).
Accordingly, it is hereby ORDERED that the application for
attorney fees under the Equal Access to Justice Act, 28 U.S.C. §
2412 et seq., [Record No. 16] is DENIED WITHOUT PREJUDICE.
This, the 16th day of August, 2011.
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