Thorn v. Colvin

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Attorney's Fees is GRANTED. [Doc. 21.] IT IS FURTHER ORDERED that the Social Security Administration shall remit to Plaintiff attorney Brigid A. McNamara attorneys fees in the amount of $5,689.19, subject to any pre-existing debt that the Plaintiff owes to the United States at the address provided by her attorney, 1285 Fern Ridge Parkway, Suite 120, St. Louis, MO 63141. Signed by Magistrate Judge Nannette A. Baker on 9/1/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JENNIFER THORN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:15-CV-217 NAB

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Petition for Attorney’s Fees Under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 21.] Plaintiff requests attorney’s fees
in the amount of $5,689.19, at the rate of $193.51 per hour for 29.4 hours of attorney work.
Defendant Carolyn Colvin, Acting Commissioner of Social Security, does not object to
Plaintiff’s request for attorney’s fees, nor the amount requested. [Doc. 22.] Based on the
following, the Court will award Plaintiff attorney’s fees in the amount of $5,689.19.
I.

Factual and Procedural Background
Plaintiff Jennifer Thorn 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 supplemental
security income under the Social Security Act. [Doc. 1.] On May 27, 2016, the Court issued an
Order of Reversal and Remand and Judgment in favor of Plaintiff pursuant to sentence four of 42
U.S.C. § 405(g). [Docs. 19, 20.] Plaintiff filed a motion for attorney’s fees under the EAJA on
July 29, 2016. [Doc. 21.] Defendant filed a response on August 12, 2016. [Doc. 22.]

II.

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
longer appealable.”

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

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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).
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, because she has obtained a reversal of the Commissioner’s denial of her application for
benefits. [Doc. 20.]
Second, Plaintiff’s application for attorney’s fees is reasonable.

Plaintiff requests

attorney’s fees in the amount of $5,689.19 at the rate of $193.51 per hour for 29.4 hours of
attorney work. Plaintiff includes an itemized statement from her attorneys stating the actual time
expended and the rate at which the attorney’s fees were computed. Therefore, the Court will
award Plaintiff attorney’s fees for 29.4 hours of attorney 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). In the motion requesting attorney’s fees, Plaintiff seeks an increase in the

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attorney’s fee based on an increase in the cost of living since the EAJA’s enactment of the hourly
rate of $125.00 per hour. “Although the district court may, upon proper proof, increase the
[$125.00] per hour rate to reflect the increase in the cost of living, this increase is not automatic.”
McNulty v. Sullivan, 886 F.2d 1074 (8th Cir. 1989) (internal citations omitted).
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
2016. 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 $5,689.19 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 $5,689.19 in
attorney’s fees at the rate of $193.51 per hour for 29.4 hours of attorney work.
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, 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, 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.

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IV.

Conclusion
Based on the foregoing, the Court will award Plaintiff attorney’s fees in the amount of

$5,689.19.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney’s Fees is GRANTED.
[Doc. 21.]
IT IS FURTHER ORDERED that the Social Security Administration shall remit to
Plaintiff attorney Brigid A. McNamara attorney’s fees in the amount of $5,689.19, subject to any
pre-existing debt that the Plaintiff owes to the United States at the address provided by her
attorney, 1285 Fern Ridge Parkway, Suite 120, St. Louis, MO 63141.

Dated this 1st day of September, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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