Conger v. Astrue

Filing 30

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Application for Attorneys Fees under the Equal Access to Justice Act is GRANTED. IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall remit to Dempsey, Dempsey, and Moellring, attorneys fees in the amount of $1,975.00, subjectto any pre-existing debt that the Plaintiff owes to the United States.[Doc. 28.] 28 Signed by Magistrate Judge Nannette A. Baker on 4/8/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHERYL L. CONGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:12-CV-87-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 under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 28.] Plaintiff sought an award of
attorney’s fees in the amount of $2,988.00 for 16.60 hours of work at $180.00 per hour.
Defendant Carolyn Colvin, Acting Commissioner of Social Security, represents to the Court that
the parties have agreed to attorney’s fees in the amount of $2,880.00. [Doc. 29.] Based on the
following, the Court will grant Plaintiff attorney’s fees in the amount of $1,975.00.
I.

Factual and Procedural Background
Plaintiff Sheryl L. Conger 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 under Title II of the Social Security Act. On January 30, 2014, 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. 26, 27.] Plaintiff filed an Application for Attorney’s

Fees under the EAJA on February 24, 2014. [Doc. 28.] The Commissioner filed a response on
March 10, 2014. [Doc. 29.]
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.”

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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).
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. 27.]
Second, Plaintiff’s application for attorney’s fees is reasonable, but will be reduced.
Plaintiff initially requested fees in the amount of $2,988.00 at a rate of $180.00 per hour for
16.60 hours of work. [Doc. 28.] As represented by Defendant, the parties agreed to an award of
$2,880.00 [Doc. 29.] The application includes an itemized statement 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.” 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.”

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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 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). In this instance, Conger
has failed to submit any proof supporting the request for a higher fee. The Eighth Circuit has
held that “the Consumer Price Index constitutes proper proof of the increased cost of living since
the EAJA’s enactment.” Johnson v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). Motions for
attorney’s fees normally include summaries of the consumer price index from the Department of
Labor as exhibits to the motion or a citation or link to the information. However, Conger did not
submit any supporting documentation, nor any citations to the CPI that would support the
assertion that the CPI has increased 52.72% since 1996.

Therefore, the Court will deny

Plaintiff’s request for an increase of the hourly rate from $125.00. See McNulty, 886 F.2d at
1074 (district court did not abuse discretion in refusing to make upward adjustment where
plaintiff’s counsel failed to submit proof supporting request for a higher fee to the district court).
Further, the Court has carefully reviewed Plaintiff’s time records and the Court will
reduce the compensable time by 0.8 hours. Attorney’s fees cannot be awarded for clerical tasks
such as scanning and electronically filing pleadings. See Granville House, Inc. v. Dep’t of
Health, Educ. and Welfare, 813 F.3d 881, 884 (8th Cir. 1987) (attorney cannot receive
compensation under EAJA for tasks that are administrative and can be completed by support
staff). The Court will not allow compensation of 0.6 hours for reviewing the 4-5 line orders of

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the court setting and re-setting the oral argument dates in this case. Therefore, the Court will
award Plaintiff $1,975.00 in attorney’s fees at the rate of $125.00 per hour for 15.8 hours of
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, 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 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 preexisting debt Plaintiff owes to the United States.
IV.

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

$1,975.00.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees under the
Equal Access to Justice Act is GRANTED. [Doc. 28.]

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IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall
remit to Dempsey, Dempsey, and Moellring, attorney’s fees in the amount of $1,975.00, subject
to any pre-existing debt that the Plaintiff owes to the United States.
Dated this 8th day of April, 2014.

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

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