White v. Astrue
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Petition for Award of Attorneys Fees Pursuant to the Equal Access to Justice Act is GRANTED. [Doc. 28.] IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall remit to Jeffrey J. Bunten attorneys fees in the amount of $2,449.79, subject to any pre-existing debt that the Plaintiff owes the United States. 28 Signed by Magistrate Judge Nannette A. Baker on 4/8/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13-CV-67-NAB
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Petition for Award of Attorney’s Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 28.] Plaintiff
requests attorney’s fees in the amount of $2,449.79, at the rate of $185.59 for 13.2 hours of
work. Defendant Carolyn Colvin, Acting Commissioner of Social Security, does not object to
Plaintiff’s request for attorney’s fees or the amount requested. Based on the following, the Court
will award Plaintiff attorney’s fees in the amount of $2,449.79.
Factual and Procedural Background
Plaintiff Larry White 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. On December 30, 2013, 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. 26, 27.] Plaintiff filed an application for attorney’s fees under the EAJA on March 12,
2014. [Doc. 28.] Defendant filed a response on March 17, 2014. [Doc. 30.]
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
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
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
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 he has obtained a reversal of the Commissioner’s denial of his application for
benefits. [Doc. 27.]
Second, Plaintiff’s application for attorney’s fees is reasonable.
attorney’s fees in the amount of $2,449.79 at the rate of $185.59 per hour for 13.2 hours of work.
Plaintiff 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 detailed 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 2013. 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 the total fee request 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 $2,449.79 in
Plaintiff has submitted an affidavit assigning any award he may receive under the EAJA
to his 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 his right to the
award to his attorney. Therefore, the Court will direct the Commissioner to make Plaintiff’s
attorney’s fee award payable to his attorney of record as directed below, subject to any preexisting debt Plaintiff owes to the United States.
Based on the foregoing, the Court will award Plaintiff attorney’s fees in the amount of
IT IS HEREBY ORDERED that Plaintiff’s Petition for Award of Attorney’s Fees
Pursuant to the Equal Access to Justice Act is GRANTED. [Doc. 28.]\
IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall
remit to Jeffrey J. Bunten attorney’s fees in the amount of $2,449.79, subject to any pre-existing
debt that the Plaintiff owes 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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