Heuer v. Astrue
MEMORANDUM AND ORDER re: 29 ORDERED that Plaintiff's Application for Attorney's Fees under the Equal Access to Justice Act is GRANTED. [Doc. 29]. FURTHER ORDERED that Defendant Michael J. Astrue, Commissioner of SocialSecurity, shall remit to Plaintiff attorney's fees in the amount of $5,289.68, subject to any preexisting debt that Plaintiff owes to the United States.Signed by Magistrate Judge Nannette A. Baker on 11/29/12. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ELIZABETH J. HEUER,
MICHAEL J. ASTRUE,
Case No. 2:11-CV-51 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.
Factual and Procedural Background
Plaintiff Elizabeth Heuer 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 disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401-435 and supplemental security income benefits under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381-1383b. On August 23, 2012, the Court issued a Memorandum and Order
reversing and remanding the case to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence 4.
Plaintiff filed an Application for Attorney Fees under the Equal Access to Justice Act on
November 9, 2012. Defendant has no objection to Plaintiff’s application for attorney’s fees.
“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
“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).
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 August 23, 2012. [Doc. 28]
Second, Plaintiff’s application for attorney’s fees is reasonable. Plaintiff requests fees in the
amount of $5,289.68 at a rate of $175.91 per hour and includes an itemized list 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.”
§ 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 from the United States Department of Labor, showing
the change in the cost of living from 1998 to 2012. Defendant does not contest the hourly rate, the
total fee request, or 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. 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 $5,289.68 in attorney’s fees.
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.” Astrue v. Ratcliff, 130
S.Ct. 2521,2524 (2010). Any award for attorney's fees must be subject to any government offset.
Therefore, the Court will direct the Commissioner to make Plaintiff's attorney's fee award payable
to Plaintiff, 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
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees under the
Equal Access to Justice Act is GRANTED. [Doc. 29]
IT IS FURTHER ORDERED that Defendant Michael J. Astrue, Commissioner of Social
Security, shall remit to Plaintiff attorney’s fees in the amount of $5,289.68, subject to any preexisting debt that Plaintiff owes to the United States.
Dated this 29th day of November, 2012.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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