Rodgers v. Astrue

Filing 17

MEMORANDUM AND ORDER re: 15 MOTION for Attorney Fees filed by Plaintiff Tray Rodgers. IT IS HEREBY ORDERED that plaintiff's application for attorney's fees and costs under the Equal Access to Justice Act is GRANTED. [Doc. 15] IT IS FURTHER ORDERED that the Social Security Administration shall pay attorney's fees under the EAJA in the amount of Four Thousand Two Hundred Twenty-Seven Dollars and Nine Cents ($4,227.09), and that the award shall be made payable to plaintiff Tray Rodgers. Signed by District Judge Charles A. Shaw on 5/31/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TRAY RODGERS,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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No. 1:11-CV-113 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Tray Rodgers’ Application for Attorney Fees
Under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(B). Plaintiff seeks
attorney’s fees in the amount of $4,227.09, representing 5.25 hours of attorney work in 2011, 2.95
hours of work in 2012, and 14.85 hours of work in 2013 billed at $179.21, $182.91, and $184.96 per
hour respectively. Defendant filed a response which states that it has no objection to plaintiff’s
request for an award of attorney fees under the EAJA in the amount of $4,227.09, and that the award
should be made payable directly to plaintiff pursuant to Astrue v. Ratliff, 130 S. Ct. 2521, 2252-53
(2010).
The Court has reviewed plaintiff’s application for an award of fees and expenses under the
EAJA, and concludes the statutory requirements are met. By Order of Remand dated October 20,
2011, the Court remanded this case to defendant Commissioner for a new administrative hearing and
issuance of a new decision by the Administrative Law Judge.

On March 20, 2013, the

Administrative Law Judge approved plaintiff for disability benefits and awarded plaintiff past-due

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is
substituted for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken
to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

benefits, and this action was dismissed on the Commissioner’s motion on April 11, 2013.2
Plaintiff’s application for attorney’s fees was filed on May 10, 2013.
Attorney’s fees may not be awarded in excess of $125.00 per hour – the maximum statutory
rate under § 2412(d)(2)(A) – unless the Court finds that an increase in the cost of living or a special
factor such as the limited availability of qualified attorneys justifies a higher fee. 28 U.S.C.
§ 2412(d)(2)(A). The decision to increase the hourly rate is not automatic and remains at the
discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074 (8th Cir. 1989). The hourly rate
should be increased, however, where there is “uncontested proof of an increase in the cost of living
sufficient to justify hourly attorney’s fees of more than [$125] per hour,” such as the Consumer Price
Index. Johnson v. Sullivan, 919 F.2d 503, 504, 505 (8th Cir. 1990). In this case, counsel has
attached summaries of the Consumer Price Index as exhibits and presented uncontested evidence
of an increase in the cost of living. The Court agrees with counsel that a cost of living increase is
appropriate as requested.
Because plaintiff prevailed and is not otherwise precluded from receiving attorney’s fees,
the Court finds that he is entitled to attorney’s fees in the amount of $4,227.09.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s application for attorney’s fees and costs under
the Equal Access to Justice Act is GRANTED. [Doc. 15]

2

The Application for Attorney Fees incorrectly states that plaintiff was approved for disability
benefits on September 11, 2012.
2

IT IS FURTHER ORDERED that the Social Security Administration shall pay attorney’s
fees under the EAJA in the amount of Four Thousand Two Hundred Twenty-Seven Dollars and Nine
Cents ($4,227.09), and that the award shall be made payable to plaintiff Tray Rodgers.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 31st day of May, 2013.

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