Jaco v. Colvin
MEMORANDUM AND ORDER re: 27 MOTION for Attorney Fees filed by Plaintiff Darrell Jaco. IT IS HEREBY ORDERED that Plaintiff's Application for Attorney's Fees Pursuant to the Equal Access to Justice Act is GRANTED. [Doc. 27.] IT IS FURTHER ORDERED that the Social Security Administration shall remit to The Law Offices of Daniel A. Parmele, P.C. attorney's fees in the amount of $5,096.75, subject to any pre-existing debt that the Plaintiff owes the United States. Signed by Magistrate Judge Nannette A. Baker on 7/23/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 1:14-CV-55 NAB
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Application for Award of Attorneys’ Fees
Under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 27.] Plaintiff
requests attorney’s fees in the amount of $5,096.75, for 27.55 hours of attorney work at the rate
of $185.00 per hour. Defendant Carolyn Colvin, Acting Commissioner of Social Security, does
not object to Plaintiff’s request for attorney’s fees, nor the amount requested. [Doc. 28.] Based
on the following, the Court will award Plaintiff attorney’s fees in the amount of $5,096.75.
Factual and Procedural Background
Plaintiff Darrell Jaco filed this action, pursuant to 42 U.S.C. § 405(g) for judicial review
of the final decision of Defendant denying Plaintiff’s application for disability insurance benefits
and supplemental security income under the Social Security Act. [Doc. 1.] On March 24, 2015,
the Court issued a Memorandum and Order and Judgment in favor of Plaintiff pursuant to
sentence four of 42 U.S.C. § 405(g). [Docs. 25, 26.] Plaintiff filed an Application for Award of
Attorneys’ Fees Pursuant to the EAJA on June 19, 2015. [Doc. 27.] Defendant filed a response
on June 26, 2015. [Doc. 28.]
Standard of Review
“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)(G) (“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 in this matter. 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. [Doc. 26.]
Second, Plaintiff’s application for attorney’s fees is reasonable.
attorney’s fees in the amount of $5,096.75 for 27.55 hours of attorney work at the rate of
$185.00. Plaintiff includes an itemized statement from his attorney stating the actual time
expended and the rate at which the attorney’s fees were computed. Therefore, the Court will
award Plaintiff’s counsel attorney’s fees for 27.55 hours of work.
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 cited evidence from the U.S. Department of Labor, explaining the
change in the cost of living from 1996 when the $125.00 hourly limitation became effective until
2014 and 2015. 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 a total fee award of $5,096.75 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
$5,096.75 in attorney’s fees at the rates of $185.00 per hour for work performed in 2014 and
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, 560 U.S.
586, 591 (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, 560 U.S. at 589. 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 pre-existing debt
Plaintiff owes to the United States.
Based on the foregoing, the Court will award Plaintiff attorney’s fees in the amount of
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees Pursuant to
the Equal Access to Justice Act is GRANTED. [Doc. 27.]
IT IS FURTHER ORDERED that the Social Security Administration shall remit to The
Law Offices of Daniel A. Parmele, P.C. attorney’s fees in the amount of $5,096.75, subject to
any pre-existing debt that the Plaintiff owes the United States.
Dated this 23rd day of July, 2015.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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