Lesueur v. Colvin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Attorneys Fees is GRANTED. [Doc. 27.] IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall remit to Michael Ferry attorneys fees in the amount of $4,695.02, subject to any pre-existing debt that the Plaintiff owes the United States. 27 Signed by Magistrate Judge Nannette A. Baker on 4/24/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13-CV-347-NAB
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s Motion for Attorney’s Fees pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”).
attorney’s fees in the amount of $4,695.02, at the rate of $187.75 for 23.1 hours of attorney
work, 3.1 hours of paralegal time at the rate of $100.00 per hour, and 0.8 hours of case
administrative time at $60.00 per hour. 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
Factual and Procedural Background
Plaintiff Dwayne Lesueur 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. On January 8, 2014,
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. 25, 26.] Plaintiff filed an application for attorney’s
fees under the EAJA on April 8, 2014. [Doc. 27.] Defendant filed a response on April 22, 2014.
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. 26.]
Second, Plaintiff’s application for attorney’s fees is reasonable.
attorney’s fees in the amount of $4,695.02 at the rate of $187.75per hour for 23.1 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 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
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 $4,695.02 in attorney’s fees.
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 Motion for Attorney’s Fees is GRANTED.
IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall
remit to Michael Ferry attorney’s fees in the amount of $4,695.02, subject to any pre-existing
debt that the Plaintiff owes the United States.
Dated this 24th day of April, 2014.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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