Plaisance v Social Security Administration

Filing 24

RULING re 21 Motion for Attorney Fees. IT IS ORDERED that Mr. Plaisance's motion for attorneys' fees is GRANTED IN PART and DENIED IN PART. Signed by Magistrate Judge Patrick J Hanna on 9/4/2019. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
MARK ANTHONY PLAISANCE

CIVIL ACTION NO. 6:18-cv-00033

VERSUS

JUDGE JAMES

ANDREW SAUL, COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION

MAGISTRATE JUDGE HANNA

RULING ON MOTION FOR ATTORNEYS’ FEES
Currently pending before the court is the motion for attorneys’ fees filed by
the appellant, Mark Anthony Plaisance, pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). (Rec. Doc. 21). Mr. Plaisance seeks to recover the
sum of $8,443.98 (representing 67.25 hours of attorney time at the rate of $125 per
hour plus expenses of $37.73).

The Commissioner of the Social Security

Administration objected to certain amounts sought to be recovered. (Rec. Doc. 23).
For the reasons set forth below, the undersigned finds that Mr. Plaisance’s motion
should be granted in part and denied in part.
Background Information
In November 2010, Mr. Plaisance filed applications for disability insurance
benefits (“DIB”) and supplemental security income benefits (“SSI”). After his
applications were denied, Mr. Plaisance requested a hearing, which was held on
February 28, 2012. On June 21, 2012, Administrative Law Judge Michael M.

Wahlder issued a ruling1 in which he found that Mr. Plaisance was not disabled. Mr.
Plaisance appealed the ruling, in a proceeding styled Plaisance v. Social Security
Administration, bearing Civil Action No. 6:13-cv-02365 on the docket of this court.
This Court determined that certain of the ALJ’s findings were not supported by
substantial evidence and recommended that the matter be remanded for further
administrative proceedings. On September 3, 2014, the district court adopted the
report and recommendation and issued a judgment ordering remand.2 The judgment
expressly stated that the matter was being remanded pursuant to the fourth sentence
of 42 U.S.C. § 405(g).3 A footnote in the judgment explained that a “fourth sentence
remand constitutes a ‘final judgment’ that triggers the filing period for an EAJA fee
application.”4 However, the record of Civil Action No. 6:13-cv-02365 contains no
evidence that an application for EAJA fees was ever filed.
Following remand, a hearing was held on October 14, 2015 before
Administrative Law Judge Mary Gattuso. On December 17, 2015, Judge Gattuso
issued a ruling in which she found that Mr. Plaisance was not disabled.5 Mr.

1

Rec. Doc. 12-2 at 580-588.

2

Rec. Doc. 12-2 at 598.

3

Rec. Doc. 12-2 at 598.

4

Rec. Doc. 12-2 at 598.

5

Rec. Doc. 12-2 at 492-505.

2

Plaisance appealed the ruling in a lawsuit styled Mark Plaisance v. Carolyn W.
Colvin, Acting Commissioner of Social Security, bearing Civil Action No. 6:16-cv00210 on the docket of this court. In response, the Commissioner moved for the
ALJ’s decision to be reversed and remanded.6 On December 19, 2016, the court
issued a judgment reversing and remanding Judge Gattuso’s ruling pursuant to the
fourth sentence of 42 U.S.C. § 405(g).7 As noted above, a fourth sentence remand
constitutes a final judgment that triggers the filing period for an EAJA fee
application. But the record of Civil Action No. 6:16-cv-00210 contains no evidence
that a petition for EAJA fees was ever filed.
After the second remand, a hearing was held on July 12, 2017 before
Administrative Law Judge Kim A. Fields. On November 15, 2017, Judge Fields
issued a ruling, which again found that Mr. Plaisance was not disabled.8 Mr.
Plaisance appealed Judge Fields’s ruling in this proceeding, Civil Action No. 6:18cv-00033. This Court found that certain of the ALJ’s findings were not supported
by substantial evidence in the record and were reached without application of the
proper legal standards. This Court consequently recommended that the ALJ’s

6

Rec. Doc. 12-3 at 715-718.

7

Rec. Doc. 16 in Civil Action No. 6:16-cv-00210.

8

Rec. Doc. 12-3 at 559-571.

3

adverse ruling should be reversed and benefits should be paid to Mr. Plaisance.9 In
a judgment dated June 25, 2019, the district court adopted this Court’s findings,
reversed Judge Fields’s decision, and remanded the matter to the Commissioner of
Social Security with instructions to pay Mr. Plaisance DIB and SSI benefits
beginning April 21, 2009.10 The judgment expressly stated that the matter was being
reversed and remanded pursuant to 42 U.S.C. § 405(g) and further stated that a fourth
sentence remand constitutes a final judgment that triggers the filing period for an
EAJA fee application.11
Thus, in the lengthy history of Mr. Plaisance’s application for Social Security
benefits, there were three final decisions that triggered deadlines for seeking EAJA
fees, but only one petition for the recovery of EAJA fees was filed – the instant
motion. Mr. Plaisance now seeks to recover the fees and expenses incurred by his
counsel between May 2014 and July 2019.

9

Rec. Doc. 19.

10

Rec. Doc. 20.

11

Rec. Doc. 20.

4

Analysis
A.

The Award Of Attorneys’ Fees Pursuant To The EAJA.
The EAJA permits the recovery of attorneys’ fees and expenses in

proceedings for judicial review of an agency’s action.12 The purpose of the statute
is “to ensure that there is sufficient representation for individuals who need it while
minimizing the cost of attorneys' fees awards to the taxpayers”13 or, in other words,
“to eliminate for the average person the financial disincentive to challenge
unreasonable government actions.”14 A party is entitled to recover attorneys’ fees
pursuant to the EAJA if his net worth is less than $2 million;15 he is the prevailing
party; he filed a timely fee application; the government’s position was not
substantially justified; and no special circumstances make an award unjust.16 An
award of attorney’s fees and expenses under the EAJA must also be reasonable.17 In

12

28 U.S.C. § 2412(d)(1)(A).

13

Baker v. Bowen, 839 F.2d 1075, 1082 (5th Cir. 1988).

14

Murkeldove v. Astrue, 635 F.3d 784, 793 (5th Cir. 2011) (quoting Richard v. Hinson, 70
F.3d 415, 417 (5th Cir. 1995)).
15

28 U.S.C. § 2412(d)(2)(B).

16

28 U.S.C. § 2412(d)(1); Squires-Allman v. Callahan, 117 F.3d 918, 920 n. 1 (5th Cir. 1997);
Milton v. Shalala, 17 F.3d 812, 813 n. 1 (5th Cir. 1994).
17

28 U.S.C. § 2412(b).

5

this case, the Commissioner contested only whether Mr. Plaisance’s fee petition was
timely filed.
1.

Mr. Plaisance’s Net Worth.

Mr. Plaisance filed his latest appeal in forma pauperis,18 and he was found to
be eligible for SSI benefits.19 Furthermore, the Commissioner did not challenge Mr.
Plaisance’s representation that his net worth is less than $2 million. Accordingly,
this Court finds that this requirement for an award of EAJA attorneys’ fees is
satisfied.
2.

Mr. Plaisance was the Prevailing Party.

The Fifth Circuit has explained that “[a] party prevails by succeeding on ‘any
significant issue in litigation which achieves some of the benefit the parties sought
in bringing suit.’”20 In particular, a party who obtains reversal or remand of a Social
Security appeal pursuant to the fourth sentence of § 405(g) qualifies as a prevailing
party for purposes of fees under the EAJA.21 Mr. Plaisance successfully appealed

18

Rec. Doc. 3.

19

Rec. Docs. 19, 20.

20

Squires-Allman v. Callahan, 117 F.3d at 920 (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)).
21

Rice v. Astrue, 609 F.3d 831, 833 (5th Cir. 2010); Breaux v. U.S.D.H.H.S., 20 F.3d 1324,
1325 (5th Cir. 1994) (citing Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993)).

6

three adverse rulings of the Commissioner. Therefore, there is no dispute that he
was the prevailing party with regard to all three appeals.
3.

The Commissioner's Opinion was not Substantially Justified.

For Mr. Plaisance to recover attorneys’ fees under the EAJA, the
Commissioner's position in denying benefits must not have been “substantially
justified.”22 “The standard for determining whether the government's position is
substantially justified is whether the position is ‘justified to a degree that could
satisfy a reasonable person.’”23 The burden is on the government to prove that its
position was substantially justified.24 In this case, the Commissioner did not argue
that its position was substantially justified. Furthermore, the district judge remanded
the case for the payment of benefits after adopting this Court’s findings that, in
certain respects, the ALJ’s findings were not reached through the application of
proper legal standards and were not supported by substantial evidence in the record.
Consequently, this Court finds that the Commissioner failed to prove that its position
in this case was substantially justified.

22

See 28 U.S.C. § 2412(d)(1)(A).

Hernandez v. Barnhart, 202 Fed. App’x 681, 682 (5th Cir. 2006) (citing Pierce v.
Underwood, 487 U.S. 552, 565 (1988)).
23

24

Baker v. Bowen, 839 F.2d at 1080.

7

4.

There are No Special Circumstances.

The EAJA disqualifies an applicant from an award of attorneys’ fees if there
are special circumstances making an award unjust.25 It is the government's burden
to prove that such special circumstances exist.26 Other than arguing that Mr.
Plaisance’s fee petition was not timely, the Commissioner did not object to his
motion for attorneys’ fees and, more particularly, did not articulate any special
circumstances that would make an award of fees unjust in this case. This Court
therefore finds that no special circumstances exist that would make an award of
attorneys’ fees unjust in this case.
5.

The Timeliness of the Appellant’s Fee Application.

Mr. Plaisance seeks to recover under the EAJA the attorneys’ fees and
expenses he incurred between May 2014 through July 2019. The Commissioner
argued that Mr. Plaisance’s motion was not timely with regard to the fees incurred
in connection with his appeal of the first two adverse rulings. The Commissioner
did not argue that Mr. Plaisance is not entitled to recover the attorneys’ fees incurred
in appealing the third adverse ruling.

25

28 U.S.C. § 2412(d)(1)(A).

26

Baker v. Bowen, 839 F.2d at 1080.

8

Under the EAJA, a prevailing party must submit an application for fees and
expenses “within thirty days of final judgment in the action.”27 For purposes of the
EAJA, final judgment is defined as “a judgment that is final and not
appealable. . . .”28 Rule 4(a) of the Federal Rules of Appellate Procedure states that,
in a civil case to which a federal officer is a party, the time for appeal does not end
until sixty days after the entry of judgment. The EAJA's thirty-day time limit runs
from the end of the period for appeal.29 Therefore, when the Commissioner does not
file an appeal within the sixty-day period for appeal of a court’s ruling on a Social
Security appellant’s request for judicial review of an adverse decision, an applicant
seeking fees pursuant to the EAJA has thirty days after the sixty-day period for
appeal has run to submit a fee petition.30 As the Fifth Circuit has explained: “In
sentence four cases, the filing period [for fee applications under the EAJA] begins
after the final judgment. . . is entered by the court and the appeal period has run, so
that the judgment is no longer appealable.”31 “Thus, a party has 30 days after this
sixty-day time period to seek an EAJA award of fees. After the thirty-day time

27

28 U.S.C. § 2412(d)(1)(B).

28

28 U.S.C. § 2412(d)(2)(G). See, also, Murkeldove v. Astrue, 635 F.3d at 792.

29

See Shalala v. Schaefer, 509 U.S. at 298.

30

28 U.S.C. § 2412(d)(1)(B).

31

Pierce v. Barnhart, 440 F.3d 657, 661 (5th Cir. 2006) (quoting Melkonyan v. Sullivan, 501
U.S. 89, 102 (1991)).

9

period, an EAJA award is no longer available.”32 Indeed, the thirty-day time period
is jurisdictional; therefore, the district court lacks jurisdiction to award attorneys’
fees when the fee petition is filed more than thirty days after the judgment becomes
final and non-appealable.33
In support of his petition for attorneys’ fees, Mr. Plaisance submitted a
detailed statement from his attorney, showing time and expenses incurred while
working on this matter from May 6, 2014 through July 25, 2019. Mr. Plaisance
argued that his fee petition was timely because the June 25, 2019 judgment became
final when the Commissioner failed to file objections to this Court’s report and
recommendation.34 But the judgment was not issued until after the time allotted for
objecting to the report and recommendation had already elapsed. Therefore, this
argument lacks merit. Although Mr. Plaisance seeks to recover the fees and
expenses that his counsel incurred during the entire 2014 to 2019 time period, his
motion for attorneys’ fees was filed too late with regard to his appeal of the first two
unfavorable rulings.
Mr. Plaisance appealed the first unfavorable administrative ruling to the
district court, and the district court issued a favorable final judgment on September

32

Murkeldove v. Astrue, 635 F.3d at 792.

33

Briseno v. Ashcroft, 291 F.3d 377, 380 (5th Cir. 2002) (per curiam).

34

Rec. Doc. 21 at 5.

10

3, 2014. The delay for appealing that judgment to the Fifth Circuit Court of Appeals
expired sixty days later on November 2, 2014. The thirty-day time period for
seeking the recovery of attorneys’ fees under the EAJA ran from November 3, 2014
to December 3, 2014. But there is no evidence that a fee petition was filed in that
time frame. Therefore, Mr. Plaisance cannot recover any attorneys’ fees incurred in
connection with his appeal of the district court’s September 3, 2014 judgment.
Mr. Plaisance appealed the second unfavorable administrative ruling to the
district court, and the Commissioner sought remand of the ruling. The district court
issued its second favorable final judgment on December 19, 2016. The delay for
appealing that judgment to the Fifth Circuit Court of Appeals expired sixty days later
on February 17, 2017. The thirty-day time period for seeking the recovery of
attorneys’ fees under the EAJA ran from February 18, 2017 to March 19, 2017. But
there is no evidence that a fee petition was filed in that time frame. Therefore, Mr.
Plaisance cannot recover any attorneys’ fees incurred in connection with his appeal
of the district court’s December 19, 2016 judgment.
By failing to file EAJA fee petitions within thirty days after the expiration of
the appeal delays for the first two favorable judgments, Mr. Plaisance lost the

11

opportunity to recover the fees incurred with regard to his appeals of the first two
adverse rulings.35
The district court issued a third favorable final judgment on June 25, 2019.
The delay for appealing that judgment to the Fifth Circuit Court of Appeals did not
expire until sixty days later – on August 24, 2019. The thirty-day time period for
seeking the recovery of attorneys’ fees under the EAJA ran from August 25, 2019
to September 23, 2019. Therefore, to be timely, Mr. Plaisance had to file his fee
petition no earlier than August 24, 2019 and no later than September 23, 2019. But
Mr. Plaisance filed his fee petition on July 25, 2019 (Rec. Doc. 21), without waiting
for the appeal delays to expire. Accordingly, his fee application was premature. An
EAJA fee application can be dismissed on the basis of prematurity. 36
Although Mr. Plaisance’s motion was premature when it was filed, the appeal
delays for the June 25, 2019 judgment ran without the Commissioner seeking to
appeal the judgment. The judgment is now final and non-appealable, and the
Commissioner did not object to the motion on the basis that it was premature. The
time period for filing a timely fee motion does not expire until September 23. This

35

See, e.g., Brandt v. Barnhart, 285 F.Supp.2d 917, 918 (S.D. Tex. 2003); Londo v.
McMahon, No. 06-2087, 2009 WL 87595, at *2 (W.D. La. Jan. 12, 2009).
See, e.g., Pierce v. Barnhart, 440 F.3d 657, 661 (5th Cir. 2006) (“These initial [EAJA
attorneys’ fee] applications were premature. . . . The district court denied the applications.”); Lewis
v. Sullivan, 752 F.Supp. 208, 211 (E.D. La. 1990) (“the Court. . . must deny Lewis' application
[for EAJA attorneys’ fees] as premature.”)
36

12

Court therefore finds that it would be a futile exercise to dismiss Mr. Plaisance’s
motion as premature only to have it filed again within days so as to meet the
September 23 deadline. In other similar cases, fees have been awarded,37 and this
Court finds that since the appeal delays have now expired and the judgment is now
both final and non-appealable, the premature filing of Mr. Plaisance’s fee application
is no longer an obstacle to his recovery of attorneys’ fees.
In summary, this Court finds that Mr. Plaisance has shown that his net worth
is less than $2 million, he is the prevailing party, the Commissioner's denial of
benefits was not substantially justified, and there are no special circumstances that
would render the award of attorney fees unjust. Mr. Plaisance also established that
his EAJA application was timely filed only with regard to the attorney time and
expenses incurred with regard to his appeal of the third adverse ruling. Next, this
Court must determine whether the attorneys’ fees and expenses sought to be
recovered by Mr. Plaisance are reasonable.
B.

The Reasonableness Of the Claimed Attorneys’ Fees and Expenses.

37

See, e.g., Green v. Commissioner, Social Security Administration, No. 6:11-CV-625, 2013
WL 9816608, at *2 n. 1 (E.D. Tex. Apr. 15, 2013) (although “Plaintiff filed his motion. . .
prematurely[,]. . . the judgment is now final and in any event, the Commissioner does not object
to the award despite the premature filing.”); Collison v. Commissioner of Social Security, No. 071175, 2008 WL 5156476, at *1 n. 1 (W.D. La. Dec. 5, 2008) (“[T]he instant application . . . was
premature. Rather than deny the motion, the undersigned deferred ruling on the motion until after
the delays had run.”).

13

The EAJA permits recovery of reasonable attorneys’ fees based on prevailing
market rates.38 As the fee applicant, Mr. Plaisance bears the burden of demonstrating
the reasonableness of the number of hours expended on the claim. 39 As a general
rule, “in determining the amount of attorneys' fees, the district court enjoys
discretion.”40 Therefore, this Court must determine whether the hours claimed by
Mr. Plaisance's attorney are reasonable, whether her hourly billing rate was
consistent with the prevailing market rates, and whether the claimed costs and
expenses are reasonable.
This Court reviewed the itemized billing statement submitted by Mr.
Plaisance. According to the statement submitted in support of the fee petition, Mr.
Plaisance's counsel spent a total of 67.25 hours working on his case at the rate of
$125.00 per hour, for a total of $8,406.25 in attorneys’ fees plus $37.73 in expenses,
for a total requested award of $8,443.98. As noted above, however, only the time
spent on the judicial appeal of the most recent adverse ruling by an ALJ can be
recovered. The third adverse ruling was issued on November 15, 2017. Therefore,
only work done after that date could reasonably have been performed on the appeal
of that ruling.

38

28 U.S.C. § 2412(d)(2)(A).

39

Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990).

40

Perales v. Casillas, 950 F.2d 1066, 1074 (5th Cir. 1992).

14

The Commissioner did not object to Mr. Plaisance’s counsel being
compensated for the work performed on January 5, 2018 and thereafter at the hourly
rate requested by Mr. Plaisance. The Commissioner claimed that this work totaled
23.5 hours at a rate of $125 per hour or $4,112.50. But the Commissioner made two
arithmetic errors. The statement submitted by Mr. Plaisance’s shows 23 hours of
work from January 4, 2018 through July 25, 2019 – not 23.5 hours. Also, 23 hours
at $125.00 per hour equals $2,875.00 in fees sought to be recovered during that time
period – not $4,112.50.
This Court finds it to be reasonable for Mr. Plaisance’s counsel to be
compensated for the 23 hours expended from January 5, 2018 through July 25, 2019.
This Court also finds it to be reasonable for Mr. Plaisance’s counsel to be
compensated for the one hour of time that she spent on November 20, 2017,
reviewing the ALJ’s unfavorable decision and notifying her client about the decision
and “the need for third appeal.”41 Thus, the total number of attorney hours worked
after the third unfavorable administrative ruling was issued is 24, and this Court finds
that number to be reasonable. These hours were spent advancing Mr. Plaisance's
appeal of the unfavorable ruling by drafting pleadings, reviewing the evidence,
researching relevant issues, drafting and revising the brief, and conferring with the

41

Rec. Doc. 21-3 at 4.

15

claimant.

A favorable result was obtained, and the hours submitted by Mr.

Plaisance's counsel furthered his case. Accordingly, the undersigned finds that the
24 hours spent on this case by Mr. Plaisance's attorney was reasonable.
The undersigned further finds that Mr. Plaisance’s attorney should be
compensated at the hourly rate of $175 per hour, which is the prevailing rate in this
district,42 rather than the $125.00 per hour requested in the fee petition.
Finally, this Court finds that it would be reasonable for Mr. Plaisance’s
counsel to be reimbursed for the expenses she incurred after the third adverse ruling
was issued, which consist of mailing costs in the amount of $21.23. Taxation of
costs under 28 U.S.C. § 1920 is authorized under EAJA.43 Costs include the filing
fee and fees for printing and copies.44 Litigation expenses also are compensable
under the EAJA provided they are reasonable and necessary.45 The Commissioner

42

In Montgomery v. Colvin, No. 14-3120, 2016 WL 4705730, at *3 (W.D. La. Aug. 16,
2016), report and recommendation adopted, 2016 WL 4705573 (W.D. La. Sept. 8, 2016), the court
weighed cost of living increases since 2014 against prevailing market conditions and the healthy
community of social security practitioners in this area and implemented an hourly rate of $175.00
per hour for EAJA petitions for services performed in 2014 and going forward. See, also, Lott v.
Berryhill, No. 17-0783, 2018 WL 6920115, at *1 (W.D. La. Dec. 17, 2018), report and
recommendation adopted, 2019 WL 80869 (W.D. La. Jan. 2, 2019) (adopting an hourly rate of
$175 per hour for work performed by an attorney); Parrish v. Colvin, No. 15-0581, 2016 WL
6581357, at *1 (W.D. La. Aug. 25, 2016) (same).
43

28 U.S.C. § 2412(a).

44

28 U.S.C. § 1920(a)(1).

45

Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988).

16

did not object to the recovery of these sums, but asked that, for source of payment
purposes, that the postage charges be categorized as expenses. The court will so
oblige, and otherwise finds that the requested expenses are reasonable and necessary.
Accordingly, this Court finds that Mr. Plaisance’s attorney should be paid fees
calculated on the basis of 24 hours at $175.00 per hour or $4,200.00 plus expenses
of $21.23, for a total award of $4,221.23.
The Supreme Court has held that EAJA awards are payable directly to the
prevailing party, not his attorney,46 and the Fifth Circuit has reiterated this point.47
Accordingly, the award of attorneys’ fees and costs should be made payable directly
to Mr. Plaisance but sent in care of his attorney.
Conclusion
This Court finds that Mr. Plaisance is entitled to an award of attorneys’ fees
pursuant to the EAJA because he is the prevailing party, his fee request was timely
in part, the Commissioner's position was not substantially justified, and there are no
special circumstances that make an award unjust. This Court further finds that 24
hours of work by Mr. Plaisance’s attorney were reasonable and necessary, that the
prevailing market rate for attorneys representing clients seeking Social Security
awards is $175 per hour, and that mailing expenses in the amount of $21.23 were
46

Astrue v. Ratliff, 560 U.A. 586, 593 (2010).

47

Jackson v. Astrue, 705 F.3d 527, 531 n.11 (5th Cir. 2013).

17

also reasonable and necessary, justifying an award in the total amount of $4,221.23.
Accordingly,
For the foregoing reasons,
IT IS ORDERED that Mr. Plaisance’s motion for attorneys’ fees is
GRANTED IN PART and DENIED IN PART. More particularly, the motion is
granted with regard to the attorneys’ fees and expenses incurred during the time
period from November 20, 2017 through July 25, 2019 and the motion is denied with
regard to the attorneys’ fees and expenses sought to be recovered but incurred before
November 20, 2017.
IT IS FURTHER ORDERED that the sum of $4,221.23 is awarded to Mr.
Plaisance as an EAJA fee. The Commissioner of the Social Security Administration
shall forward a check to Mr. Plaisance’s counsel made payable to Mark Anthony
Plaisance in the amount of $4,221.23.
Signed at Lafayette, Louisiana, this 4th day of September 2019.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

18