Derfler v. Colvin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Attorneys Fees pursuant to the Equal Access to Justice Act is GRANTED. [Doc. 30.] IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shallremit to the Law Offices of Harry J. Binder and Charles E. Binder, P.C., attorneys fees in the amount of $7,000.00, subject to any pre-existing debt that the Plaintiff owes to the United States. IT IS FURTHER ORDERED that costs in the amount of $400.00 shall be remitted to Plaintiff to be paid from the Judgment Fund administered by the United States Treasury. 30 Signed by Magistrate Judge Nannette A. Baker on 12/4/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GAIL C. DERFLER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13-CV-1469-NAB
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney Fees pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 30.] Plaintiff sought an award
of attorney’s fees in the amount of $7,490.29 for 41 hours of work at $182.69 per hour, plus
$400.00 for the federal court filing feel and $100.00 for pro hac vice fees. 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 $7,000.00, plus the amount of $400.00 for the filing
fee. [Doc. 31.] Based on the following, the Court will grant Plaintiff attorney’s fees in the
amount of $7,000.00 and expenses for the filing fee in the amount of $400.00.
Factual and Procedural Background
Plaintiff Gail C. Derfler 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 social security income under the Social Security Act. On August 6, 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. 28, 29.] Plaintiff filed a Motion for
Attorney’s Fees under the EAJA on November 4, 2014. [Doc. 30.] The Commissioner filed a
response on November 18, 2014. [Doc. 31.]
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 she has obtained a reversal of the Commissioner’s denial of her application for
benefits. [Doc. 29.]
Second, Plaintiff’s motion for attorney’s fees is reasonable, but will be reduced. Plaintiff
initially requested fees in the amount of $7,490.29 at a rate of $182.69 per hour for 41 hours of
work. [Doc. 30-4.] As represented by Defendant, the parties agreed to an attorney’s fee award
of $7,000.00. [Doc. 31.] The application includes an itemized statement from her attorneys
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).
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. In an affidavit, 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. 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
$7,000.00 in attorney’s fees.
Plaintiff also seeks reimbursement of the filing fee in the amount of $400.00. Defendant
does not contest the award of $400.00 to the Plaintiff. “A judgment for costs when taxed against
the United States shall, in an amount established by statute, court rule, or order, be limited to
reimbursing in whole or in part the prevailing party for the costs incurred by such party in the
litigation. 28 U.S.C. § 2412(a)(1). Based on the foregoing, the Court will award Plaintiff costs
in the amount of $400.00 for reimbursement of the filing fee.
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.
Based on the foregoing, the Court will award Plaintiff attorney’s fees in the amount of
$7,000.00 and costs in the amount of $400.00.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney’s Fees pursuant to the
Equal Access to Justice Act is GRANTED. [Doc. 30.]
IT IS FURTHER ORDERED that Defendant Commissioner of Social Security shall
remit to the Law Offices of Harry J. Binder and Charles E. Binder, P.C., attorney’s fees in the
amount of $7,000.00, subject to any pre-existing debt that the Plaintiff owes to the United States.
IT IS FURTHER ORDERED that costs in the amount of $400.00 shall be remitted to
Plaintiff to be paid from the Judgment Fund administered by the United States Treasury.
Dated this 4th day of December, 2014.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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