Lakey v. Astrue
MEMORANDUM AND ORDER: Based on the foregoing, the Court will award Plaintiff attorney's fees and costs. Accordingly, IT IS HEREBY ORDERED that Plaintiff's Application for Attorney's Fees under the Equal Access to Justice Act is GRANTE D. [Doc. 21.] IT IS FURTHER ORDERED that the Social Security Administration shall remit to David Throesch, attorneys fees in the amount of $5,166.00, subject to any pre-existing debt that the Plaintiff owes to the United States. Signed by Magistrate Judge Nannette A. Baker on 1/21/2014. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RICKY EARL LAKEY,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 1:12-CV-97-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”). Plaintiff requests attorney’s fees in the
amount of $5,166.00 for 28.70 hours of work. Defendant consents to an award of attorney’s fees
to Plaintiff in the amount requested. The Court will grant Plaintiff’s motion.
Factual and Procedural Background
Plaintiff Ricky Earl Lakey filed this action, pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of Carolyn Colvin, Acting Commissioner of Social Security,
(“Defendant”) denying Plaintiff’s application for disability insurance benefits and Supplemental
Security Income (“SSI”) under Title II and Title XVI of the Social Security Act. On October 29,
2013, the Court issued a Memorandum and Order and Judgment and Order of Remand in favor
of Plaintiff pursuant to sentence four of 42 U.S.C. § 405(g). [Docs. 19, 20.] Plaintiff filed an
Application for Attorney’s Fees under the EAJA on November 29, 2013. [Doc. 21.] The
Commissioner filed a response on December 11, 2013. [Doc. 22.]
“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
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
In this action, the Court finds that Plaintiff has demonstrated that an award of attorney’s
fees under the EAJA is appropriate. First, Plaintiff is a prevailing party in this action, because he
has obtained a reversal of the Commissioner’s denial of his application for benefits. See Final
Jud. and Order of Remand of October 29, 2013. [Doc. 20.]
Second, Plaintiff’s application for attorney’s fees is reasonable. Plaintiff requests fees in
the amount of $5,166.00 at a rate of $180.00 per hour for 28.70 hours of work. Plaintiff includes
an itemized statement from his 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 evidence in an affidavit explaining the change in the cost of
living from 1996 when the $125.00 hourly limitation became effective until 2012. Defendant
does not contest the hourly rate, the total fee request, nor the number of hours 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. As alleged by Plaintiff, the Court finds that the
Defendant’s position was not substantially justified. Plaintiff’s application for fees was timely
filed. Therefore, the Court will award Plaintiff $5,166.00 in attorney’s fees.
Plaintiff has submitted an affidavit assigning any award he may receive under the EAJA
to his 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 his right to the
award to his attorney. Therefore, the Court will direct the Commissioner to make Plaintiff’s
attorney’s fee award payable to his attorney of record as directed below, subject to any preexisting debt Plaintiff owes to the United States.
Based on the foregoing, the Court will award Plaintiff attorney’s fees and costs.
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees under the
Equal Access to Justice Act is GRANTED. [Doc. 21.]
IT IS FURTHER ORDERED that the Social Security Administration shall remit to
David Throesch, attorney’s fees in the amount of $5,166.00, subject to any pre-existing debt that
the Plaintiff owes to the United States.
Dated this 21st day of January, 2014.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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