Smith v. SSA
Filing
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MEMORANDUM OPINION & ORDER: IT IS ORDERED that the plaintiffs motion for fees (R. 19) is GRANTED IN PART and DENIED IN PART. The defendant shall pay the plaintiffs attorneys fees of $2,000.00.Signed by Judge Jennifer B Coffman on 09/17/2012.(KJA)cc: COR
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LONDON
CIVIL ACTION NO. 11-333-JBC
KIM SMITH,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
*************
This matter is before the court on the motion of plaintiff’s counsel for an
award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. R. 19. The court, having reviewed the record and being duly
advised, will grant the motion in part and deny it in part.
The motion requests a fee of $2,400.00, representing 16 hours of attorney
time at a rate of $150.00 per hour. The defendant does not dispute that the
plaintiff was the prevailing party, that the application was timely, that the position
of the government was not substantially justified, and that no special
circumstances make the award unjust. The Commissioner does object to the
requested hourly rate as being excessive, and requests that any fee granted be
made payable to the plaintiff, and not to counsel.
I.
“[A]ttorney fees shall not be awarded in excess of $125.00 per hour unless
the court determines that an increase in the cost of living or a special factor, such
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as the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.” 28 U.S.C. § 2412. In determining the hourly rate, the court
must first determine the market rate for similar legal services performed by lawyers
of comparable skill, experience, and reputation. If the market rate exceeds the
EAJA rate, the court may, in its discretion, allow counsel to charge a higher hourly
rate. Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992). The prevailing
market rate in the Eastern District of Kentucky is $125.00 per hour. See Stamper
v. Barnhart, No. 5:03-cv-468-JBC (E.D. Ky., September 16, 2004). To the extent
that counsel seeks to collect for a higher hourly rate, he has the burden of
justifying the request. Blum v. Stenson, 465 U.S. 886, 895 (1984).
Counsel for the plaintiff has not provided any explanation for the requested
increase in the prevailing market rate. Since no showing regarding an increase in
the cost of living or the limited availability of attorneys has been made, the court
will award fees at the statutory $125.00 rate.
II.
The motion refers both to “plaintiff’s counsel” moving the court for an award
of an attorney fee, and to “[p]laintiff request[ing] approval of a fee.” R. 19 at *1.
To the extent that the motion is requesting that the fee be paid to Smith’s counsel,
the court notes, consistent with its prior decisions, that an award of an EAJA fee
belongs to a plaintiff in an action, not to the plaintiff’s attorney. Astrue v. Ratliff,
_______ U.S. ______, 130 S.Ct. 2521, 2525 (2010). Therefore, while the court will
award attorney’s fees pursuant to the EAJA in the amount of $2,000.00 (16 hours
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x $125.00 per hour), the fees are to be made payable to Smith, not his counsel,
and are subject to a government offset to satisfy any pre-existing debt that Smith
may owe to the United States. Accordingly,
IT IS ORDERED that the plaintiff’s motion for fees (R. 19) is GRANTED IN
PART and DENIED IN PART. The defendant shall pay the plaintiff’s attorney’s fees
of $2,000.00.
Signed on September 17, 2012
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