Stark v. Astrue

Filing 21

MEMORANDUM AND ORDER re: 19 ORDERED that Plaintiff's Application for Brief in Support of Relief under the Equal Access to Justice Act Pursuant to Sentence Four Remand is GRANTED. [Doc. 19] FURTHER ORDERED that Defendant Michael J. Astrue, Commissioner of Social Security, shall remit to Plaintiff attorney's fees in the amount of $1,818.00, 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
NORTHERN DIVISION

RANDALL E. STARK,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

Case No. 2:12-CV-45 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Application for Brief in Support of Relief under
the Equal Access to Justice Act Pursuant to Sentence Four Remand. Defendant has no objection to
Plaintiff’s request for attorney’s fees in the amount requested. For the following reasons, the Court
will grant Plaintiff’s motion.
I.

Factual and Procedural Background
Plaintiff Randall Stark 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
his application for disability insurance benefits and supplemental security income under the Social
Security Act, 42 U.S.C. §§ 401-435, 1381-1383b. On October 9, 2012, 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). 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 his application for
attorney’s fees on November 12, 2012.

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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
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 he has
obtained a reversal of the Commissioner’s denial of his application for benefits. See Jud. of October
23, 2012. [Doc. 18].
Second, Plaintiff’s application for attorney fees is reasonable. Plaintiff requests fees in the
amount of $1,818.00 at an hourly rate of $180.00 per hour and 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 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
2012. 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 fee was timely filed. Therefore, the Court will award Plaintiff $1,818.00 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.
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 Brief in Support of Relief under
the Equal Access to Justice Act Pursuant to Sentence Four Remand is GRANTED. [Doc. 19]

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IT IS FURTHER ORDERED that Defendant Michael J. Astrue, Commissioner of Social
Security, shall remit to Plaintiff attorney’s fees in the amount of $1,818.00, 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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