Thurmond v. Astrue
Filing
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MEMORANDUM AND ORDER re: 16 MOTION for Attorney Fees filed by Plaintiff Laura Thurmond. IT IS HEREBY ORDERED that Plaintiff's Application for Attorney's Fees under the Equal Access to Justice Act is GRANTED. [Doc. 16].IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall remit to the Law Offices of Daniel A. Parmele, P.C. attorney's fees in the amount of $834.20, subject to any pre-existing debt that the Plaintiff owes to the United States. Signed by Magistrate Judge Nannette A. Baker on 3/5/12. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LAURA THURMOND,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 1:11-CV-134 NAB
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Application for Attorney’s Fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). Defendant consents to an award of fees to
Plaintiff in the amount requested. The Court will grant Plaintiff’s motion.
I.
Factual and Procedural Background
Plaintiff Laura Thurmond filed this action, pursuant to 42 U.S.C. § 405(g) for judicial review
of the final decision of Michael Astrue, Commissioner of Social Security, (“Defendant”) denying
Plaintiff’s application for a period of disability and disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. § § 401-435 and the application for supplemental security income
under Title XVI, 42 U.S.C. §§ 1381-1383b. Defendant filed a Motion to Remand requesting that
the Court reverse the decision of the Administrative Law Judge and remand the case to the
Commissioner pursuant to 42 U.S.C. § 405(g). Plaintiff consented to the reversal and remand
requested by the Defendant. On November 21, 2011, the Court issued a Memorandum and Order
granting Defendant’s Motion to Remand and a Final Judgment and Order of Remand pursuant to
sentence four of 42 U.S.C. § 405(g). Plaintiff filed an Application for Attorney’s Fees under the
EAJA on February 13, 2012.
II.
Standard
“A court shall award to a prevailing party. . . fees and other expenses . . . 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).
A party seeking an award of fees and other expenses must (1) submit to the court an
application for fees and other expenses which shows that the party is a prevailing party and eligible
to receive an award; (2) provide the amount sought, including an itemized statement from any
attorney or expert witness representing or appearing on behalf of the party stating the actual time
expended and the rate at which fees and other expenses were computed; (3) allege that the position
of the United States was not substantially justified, and (4) make the application within thirty days
of final judgment of the action. 28 U.S.C. § 2412(d)(1)(B). The determination of whether the
position of the United States was substantially justified shall be determined on the basis of the record
made in the action for which the fees are sought. Id. “In sentence four remand cases, the filing
period begins after the final judgment (“affirming, modifying, or reversing”) is entered by the Court
and the appeal period has run so that the judgment is no longer appealable.” Melkonyan v. Sullivan,
501 U.S. 89, 102 (1991) (citing 28 U.S.C. § 2412(d)(2)(f) (“Final judgment" means a judgment that
is final and not appealable.” )).
“It is well-settled that in order to be a prevailing party for EAJA purposes, plaintiff must
have received some, but not necessarily all, of the benefits originally sought in his action.” Stanfield
v. Apfel, 985 F.Supp. 927, 929 (E.D. Mo. 1997) (citing Swedberg v. Bowen, 804 F.2d 432, 434 (8th
Cir.1986)). Obtaining a sentence four judgment reversing the Secretary’s denial of benefits is
sufficient to confer prevailing party status. Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
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III.
Discussion
In this action, the Court finds that Plaintiff has demonstrated that an award of attorney’s fees
under the EAJA is appropriate in this matter. First, Plaintiff is a prevailing party in this action as
she has obtained a reversal of the Commissioner’s denial of her application for benefits. See Final
Jud. and Order of Remand of Nov. 21, 2011 [Doc. 14].
Second, Plaintiff’s application for attorney’s fees is reasonable. Plaintiff requests fees in the
amount of $834.20 at a rate of $170.00 per hour and includes an itemized statement from her
attorney stating the actual time expended and the rate at which the attorney’s fees were computed.
The EAJA sets a statutory limit on the amount of fees awarded to counsel at $125.00 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). “In determining a reasonable attorney's fee, the court will in each case
consider the following factors: time and labor required; the difficulty of questions involved; the skill
required to handle the problems presented; the attorney's experience, ability, and reputation; the
benefits resulting to the client from the services; the customary fee for similar services; the
contingency or certainty of compensation; the results obtained; and the amount involved.”
Richardson-Ward v. Astrue, 2009 WL1616701, No. 4:07-CV-1171 JCH at *1 (E.D. Mo. June 9,
2009). “The decision to increase the hourly rate is at the discretion of the district court.” Id. at *2.
“Where, as here, an EAJA petitioner presents uncontested proof of an increase in the cost of living
sufficient to justify hourly attorney's fees of more than [$125.00] per hour, enhanced fees should be
awarded.” Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990).
Plaintiff’s counsel submitted detailed evidence from the U.S. Department of Labor, detailing
the change in the cost of living from 1986 when the $125.00 hourly limitation became effective until
2010. Defendant does not contest the hourly rate, the total fee request, or the number of hours
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itemized in the invoice. Upon consideration of these facts, the Court finds that the hourly rate,
number of hours expended, and the total fee request is reasonable. Third, as alleged by Plaintiff, the
Court finds that the Defendant’s position was not substantially justified. Finally, Plaintiff’s
application for fees was timely filed. Therefore, the Court will award Plaintiff $834.20 in attorney’s
fees.
Plaintiff has submitted an affidavit assigning any award she may receive under the EAJA to
her counsel of record. The EAJA requires that the attorney’s fee award be awarded to the prevailing
party, in this case the Plaintiff, not the Plaintiff’s attorney. Astrue v. Ratcliff, 130 S.Ct. 2521,2525
(2010) (the term “prevailing party” in fee statutes is a “term of art” that refers to the prevailing
litigant) (citing 42 U.S.C. § 2412(d)(1)(A)). Awards of attorney fees to the prevailing party under
the EAJA are “subject to [g]overnment offset to satisfy a pre-existing debt that the litigant owes the
United States.” Ratcliff, 130 S. Ct. at 2524. Any award for attorney’s fees must be subject to any
government offset, even if the Plaintiff has assigned her right to the award to her attorney.
Therefore, the Court will direct the Commissioner to make Plaintiff’s attorney’s fee award payable
to her attorney of record as directed below, subject to any pre-existing debt Plaintiff owes to the
United States.
IV.
Conclusion
Based on the foregoing, the Court will award Plaintiff attorney’s fees in the amount
requested.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees under the
Equal Access to Justice Act is GRANTED. [Doc. 16].
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IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall remit
to the Law Offices of Daniel A. Parmele, P.C. attorney’s fees in the amount of $834.20, subject to
any pre-existing debt that the Plaintiff owes to the United States.
Dated this 5th day of March, 2012.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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