Martinez Melean v. Kijakazi

Filing 25

ORDER AWARDING ATTORNEY'S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (EAJA) - IT IS ORDERED that plaintiff Noirah M.'s Unopposed Motion for Attorney's Fees under the Equal Access to Justice Act, Filing 23 , is granted, and plainti ff Noirah M. is awarded $6,676.45 in attorney's fees pursuant to 28 U.S.C. § 2412(d). IT IS FURTHER ORDERED that the attorney's fees award shall be made payable to Plaintiff (using her full name) and delivered to her counsel, b ut if the U.S. Treasury determines that Plaintiff does not owe a federal debt, the government will accept Plaintiff's assignment of EAJA fees in Filing 23-1 and pay the attorney's fees award directly to Plaintiff's attorney. Ordered by Judge Brian C. Buescher. (JES)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NOIRAH M.,
Plaintiff,

4:23CV3093

vs.
KILOLO KIJAKAZI, Acting Commissioner of
Social Security,

ORDER AWARDING ATTORNEY’S
FEES UNDER THE EQUAL ACCESS TO
JUSTICE ACT (EAJA)

Defendant.

This action for judicial review of the administrative denial of social security disability
insurance benefits is before the Court on plaintiff Noirah M.’s Unopposed Motion for Attorney’s
Fees under the Equal Access to Justice Act, Filing 23, after a “sentence four” remand to the
Commissioner for further proceedings. Filing 22 (decision); Filing 23 (Judgment). Noirah M. seeks
an award of attorney fees in the amount of $6,676.45 for 27.5 hours at an hourly rate of $242.78
adjusted for the increase in cost of living. Filing 23 at 8. The Commissioner filed a Response to
Plaintiff’s Motion for Attorney Fees under the Equal Access to Justice Act stating that the
Commissioner does not object to the award in the amount requested. Filing 24.
The Equal Access to Justice Act (EAJA) is codified in part at 28 U.S.C. § 2412(d). In
pertinent part, § 2412(d) provides as follows:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition to
any costs awarded pursuant to subsection (a), 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.A. § 2412(d)(1). The Eighth Circuit Court of Appeals has explained,
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Although a social security claimant may be a prevailing party for purposes of the
EAJA, a fee award under the EAJA is not available unless the Commissioner lacked
substantial justification for her position. 28 U.S.C. § 2412(d)(1)(A). A position
enjoys substantial justification if it has a clearly reasonable basis in law and fact.
Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987). Accordingly, the
Commissioner can advance a losing position in the district court and still avoid the
imposition of a fee award as long as the Commissioner's position had a reasonable
basis in law and fact. Id. Further, a loss on the merits by the Commissioner does
not give rise to a presumption that she lacked substantial justification for her
position. Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir. 1985). The
Commissioner does, however, at all times bear the burden to prove substantial
justification. Id.
Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005). The Supreme Court has observed that
“[n]o holding of this Court has ever denied prevailing-party status (under § 2412(d)(1)(B)) to a
plaintiff who won a remand order pursuant to sentence four of § 405(g).” Shalala v. Schaefer, 509
U.S. 292, 300 (1993); Pottsmith v. Barnhart, 306 F.3d 526, 529 (8th Cir. 2002) (quoting Schaefer,
509 U.S. at 300). An award of attorney’s fees pursuant to the EAJA “is payable to the litigant and
is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the
United States.” Astrue v. Ratliff, 560 U.S. 586, 589 (2010).
Here, because Noirah M. obtained a remand pursuant to sentence four of § 405(g), see
Filing 21 at 2, she is a “prevailing party” within the meaning of the EAJA. Schaefer, 509 U.S. at
300. By not objecting to an award of fees pursuant to the EAJA, the Commissioner concedes as
much. Filing 24. Furthermore, the position of the Commissioner was not “substantially justified”
as evidenced by the Commissioner’s statement in its Brief in Support of Unopposed Motion to
Reverse and Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g):
The Commissioner requests the Court to remand this case to allow the
Commissioner to conduct further proceedings pursuant to sentence four of 42
U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). On remand, the
case will be assigned to a different administrative law judge (ALJ) will offer
Plaintiff the opportunity for a new hearing, take further action to complete the
administrative record, and issue a new decision.
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Filing 20 at 1. Thus, by conceding the need for remand and by not objecting to the award of fees
pursuant to the EAJA, the Commissioner has conceded that its position was not “substantially
justified.” Filing 24.
The remaining issue is the amount of the award. The Court must allow fees for hours that
“reasonably and adequately account[ ] for the attorney’s court-related services.” Stockton v.
Shalala, 36 F.3d 49, 50 (8th Cir. 1994). The Court has reviewed Noirah M’s attorney’s “Schedule
of Hours,” Filing 23 at 4–5, and finds that the hours reasonably and adequately account for her
attorney’s court-related services. Stockton, 36 F.3d at 50.1 As to the hourly rate, “[t]he statutory
rate for attorney fees for a prevailing social security claimant is ‘$75 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.’” Stockton, 36 F.3d at 50
(quoting 28 U.S.C. § 2412(d)(2)(A)(ii)). As Noirah M.’s attorney correctly points out, Congress
amended the EAJA and changed the statutory rate to $125.00 for all civil actions filed on or after
March 29, 1996. See 28 U.S.C. § 2412(d)(2)(A)(ii) (as amended by Pub. L. 104-126, § 232(b)(1)).
While another amendment is obviously in order, in the meantime, the Court finds that the cost of
living justifies a higher fee. The Court finds Noirah M.’s attorney properly relied on the Consumer
Price Index and properly calculated the cost-of-living adjustment of the EAJA statutory rate to
arrive as an hourly rate of $242.78. See Filing 23 at 9; see also https://www.ca9.uscourts.gov/
attorneys/statutory-maximum-rates/ (showing statutory maximum hourly rate under the EAJA for

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Noirah M.’s attorney’s Schedule” and brief refer to time spent to complete a “Motion for Summary Judgment
and Memorandum of Law.” See, e.g., Filing 23 at 4 (entry for 9/8/23). There were no motions for summary judgment
in this case. From the description and date indicated, however, it is apparent that the brief was in support of Plaintiff’s
Motion for Order Reversing the Commissioner’s Decision. Filing 15.

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2023 was $244.62). Again, the Commissioner does not dispute either the number of hours or the
hourly rate claimed. See generally Filing 24.
Finally, the parties agree that the attorney’s fees award should be made payable to Noirah
M. and delivered to her counsel, but if the U.S. Treasury determines that Noirah M. does not owe
a federal debt, the government will accept Noirah M.’s assignment of EAJA fees and pay them
directly to her attorney. See Astrue, 560 U.S. at 589; Filing 23 at 10 and Filing 23-1 (assignment);
Filing 24 at 1.
Accordingly, upon the foregoing,
IT IS ORDERED that plaintiff Noirah M.’s Unopposed Motion for Attorney’s Fees under
the Equal Access to Justice Act, Filing 23, is granted, and plaintiff Noirah M. is awarded $6,676.45
in attorney’s fees pursuant to 28 U.S.C. § 2412(d).
IT IS FURTHER ORDERED that the attorney’s fees award shall be made payable to
Plaintiff (using her full name) and delivered to her counsel, but if the U.S. Treasury determines
that Plaintiff does not owe a federal debt, the government will accept Plaintiff’s assignment of
EAJA fees in Filing 23-1 at 1 (¶ II) and pay the attorney’s fees award directly to Plaintiff’s
attorney.

Dated this 7th day of February, 2024.

BY THE COURT:

__________________________
Brian C. Buescher
United States District Judge

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