Shives v. Colvin

Filing 40

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Application for Attorneys Fees Pursuant to the Equal Access to Justice Act is GRANTED in part and DENIED in part. [Doc. 37 .] IT IS FURTHER ORDERED that the Social Security Administration shall remit to Karen Kraus Bill, assignee, attorneys fees in the amount of $4,628.86, subject to any pre-existing debt that the Plaintiff owes the United States. Signed by Magistrate Judge Nannette A. Baker on 8/4/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

ROSEANNE SHIVES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 2:14-CV-29 NAB

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Application for Award of Attorneys’ Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 37.] Plaintiff
requests attorney’s fees in the amount of $6,090.48, for 32.3 hours of attorney work, at the rates
of $188.60 per hour for work performed in 2014 and $188.50 per hour for work performed in
2015. Defendant Carolyn Colvin, Acting Commissioner of Social Security, objects to Plaintiff’s
request for attorney’s fees to the extent Plaintiff seeks compensation from the United States for
15.5 hours her counsel spent in connection with her October 20, 2014 brief. [Doc. 39.] Plaintiff
did not file a Reply Brief. Based on the following, the Court will award Plaintiff attorney’s fees
in the amount of $4,628.86.
I.

Factual and Procedural Background
Plaintiff Roseanne Shives 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. 35, 36.] Plaintiff filed an Application for Award
of Attorneys’ Fees Pursuant to the EAJA on June 17, 2015. [Doc. 37.] Defendant filed an
objection to Plaintiff’s Application on June 26, 2015. [Doc. 39.]
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.”)).

2

“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).
III.

Discussion
No award of fees is automatic. Commissioner v. Jean, 496 U.S. 154, 163 (1990). The

district court has discretion in determining the amount of a fee award. Hensley v. Eckerhart, 461
U.S. 424, 437 (1983). “Eligibility for fees is established upon meeting the four conditions set out
by the [EAJA], but a district court will always retain substantial discretion in fixing the amount
of an EAJA award.” Jean, 496 U.S. at 163.
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. 36.] Second, as alleged by Plaintiff, the Court finds that the Defendant’s
position was not substantially justified. Third, Plaintiff’s application for fees was timely filed.
Because the Court has concluded that Plaintiff is the prevailing party and that the government’s
position is not substantially justified, the Court must determine whether the amount requested by
plaintiff’s attorney is reasonable. Jean, 496 U.S. at 161.
“Any given civil action can have numerous phases. While the parties’ postures on
individual matters may be more or less justified, the EAJA- like other fee shifting statutes- favors
treating a case as an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161-

3

62.

“Where a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee.

Normally, this will encompass all hours reasonably expended on the

litigation, and indeed in some cases of exceptional success an enhanced award may be justified.”
Hensley, 461 U.S. at 435.

“When an adjustment is requested on the basis of either the

exceptional or limited nature of the relief obtained by the plaintiff, the district court should make
clear that it has considered the relationship between the amount of the fee awarded and the
results obtained.” Hensley, 461 U.S. at 437. “In these circumstances, the fee award should not
be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.
Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s
rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.” Id.
at 435. “There is no precise formula for making these determinations. The district court may
attempt to identify specific hours that should be eliminated, or it may simply reduce the award to
account for the limited success.” Id. at 435-36.
In this matter, both parties submitted briefs in support of their pleadings. [Docs. 25, 31.]
The Court held oral argument on March 10, 2015. During oral argument, Plaintiff’s counsel
made arguments for remand and reversal that were not contained in Plaintiff’s Brief in Support
of Complaint. The Court then allowed Defendant additional time to address the new issues
raised by Plaintiff at the oral argument. [Doc. 33.] Defendant filed a supplemental brief. [Doc.
34.] The Court then reversed and remanded this action to the Commissioner based on one of the
new issues raised by Plaintiff’s counsel at oral argument. [Doc. 35.]
Defendant filed an objection to Plaintiff’s request for attorney’s fees and requested that
the Court not award Plaintiff 15.5 hours of fees for the hours claimed for review of
administrative transcript, legal research for brief, and preparation of the brief. Plaintiff did not

4

file a reply brief in response to Defendant’s objection. Plaintiff acknowledged at the oral
argument that her brief did not contain the arguments presented at the oral argument.
The Court has carefully reviewed the record in this action, Plaintiff’s request for fees, and
the reasonableness of the fee request in relationship to the success achieved. Plaintiff’s Brief in
Support of Complaint asserted that the administrative law judge’s determination that Plaintiff
could return to her past relevant work was not supported by substantial evidence. At oral
argument, Plaintiff stated that the ALJ failed to properly consider her activities of daily living
and failed to mention the consultative examination of licensed psychologist Mark W. Schmitz in
the hearing decision. Plaintiff’s counsel’s billing records indicate that 15.5 hours was spent in
reviewing the administrative transcript and preparing the Brief in Support of Complaint.
Plaintiff spent an additional 8.5 hours reviewing the file, preparing for oral argument, and
participating in oral argument. Based on the Plaintiff’s partial success and the number of hours
spent, the Court will reduce the amount of approved hours by 7 hours. Further, the court will
reduce the amount of hours requested by 0.75 for billing designated as filing. 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). Therefore, the Court will approve Plaintiff’s application for 24.55
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

5

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
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 2014 and 2015.
Based on the foregoing, the Court will grant Plaintiff compensation for 24.55 hours of work at
the rate of $188.60 in 2014 and $188.50 in 2015.
Finally, 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, 560 U.S. at 589. 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

6

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

$4,628.86.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application for Attorney’s Fees Pursuant to
the Equal Access to Justice Act is GRANTED in part and DENIED in part. [Doc. 37.]
IT IS FURTHER ORDERED that the Social Security Administration shall remit to
Karen Kraus Bill, assignee, attorney’s fees in the amount of $4,628.86, subject to any preexisting debt that the Plaintiff owes the United States.
Dated this 4th day of August, 2015.

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

7