Tomlinson v. Astrue

Filing 28

ORDER granting the Plaintiff's 25 Motion for Attorney Fees. The Social Security Administration is directed to pay the attorney fee in the amount of $5,981.25 directly to the plaintiff, less any offset to satisfy a pre-existing debt to the United States. A judgment for attorney fees under the EAJA in the amount of $5,981.25 will be entered this date. Ordered by Judge Joseph F. Bataillon. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES E. TOMLINSON,
Plaintiff,

8:11CV96

vs.
ORDER
MICHAEL J. ASTRUE, Commissioner of
Social Security;
Defendant.

This matter is before the court on plaintiff’s motion for payment of attorney fees in
the amount of $5,981.25 pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d)

Filing No. 25.

The defendant has no objection to the amount

requested. Filing No. 27.
The EAJA, 28 U.S.C. § 2412 (2006), provides for the award of attorney fees if:
(1) the person is a prevailing party; (2) the individual’s net worth did not exceed two
million dollars at the time the civil action was filed; and (3) the fees and expenses were
“incurred by that party in [the] civil action” in which it prevailed. 28 U.S.C. §
2412(d)(1)(A),(2)(B); United States SEC v. Zahareas, 374 F.3d 624, 630 (8th Cir. 2004).
Furthermore, in order for claimants to qualify for EAJA attorney fees, the
Commissioner’s position must not have been substantially justified. Goad v. Barnhart,
398 F.3d 1021, 1025 (8th Cir. 2005); Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir.
1987). To establish substantial justification, the Commissioner must show the denial
had a reasonable basis in law and fact. Goad, 398 F.3d at 1025; Pierce v. Underwood,
487 U.S. 552, 565-66 (1988). The Commissioner has the burden of proving that its
position was substantially justified, or that special circumstances make an award of

attorney fees and expenses unjust. Koss v. Sullivan, 982 F.2d 1226, 1228-29 (8th Cir.
1993); 28 U.S.C. § 2412(d)(1)(A).
Only reasonable fees and expenses may be awarded under the Act. 28 U.S.C.
§§ 2412 (d)(1)(A), 2412 (d)(2)(A). Fees are to be based on “prevailing market rates for
the kind and quality of the services furnished,” and attorney fees in excess of $125.00
per hour cannot be awarded 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).
The court finds the plaintiff is a prevailing party. The plaintiff proffers, consistent
with the record, that his net worth does not exceed $2,000,000. Filing No. 25-1. Plaintiff
requests fees totaling $5,981.25, representing 33 hours at the rate of $181.25. Id. The
court finds that the increase in the cost of living justifies a higher fee than $125.00 per
hour.

The plaintiff has shown that the amount of $125.00, when adjusted for the

escalation of the cost of living since 1996, equates to approximately $181.25 in today’s
dollars. See http://www.bls.gov/data (Consumer Price Index data). Based on its
familiarity with prevailing rates in this community, the court finds that plaintiff’s counsel’s
rates are reasonable for cases of this complexity.
The court finds that plaintiff has shown he is entitled to EAJA fees in the amount
of $5,981.25. The court also finds that there are no special circumstances that would
make this award unjust. Under Astrue v. Ratliff, 130 S. Ct. 2521, 2525 (2010), the
EAJA fee is payable to the plaintiff as the litigant and may be subject to offset to satisfy
a pre-existing debt that the litigant owes to the United States. The defendant further

2

requests that this award be paid by the Social Security Administration.

The court

agrees with these requests. Accordingly,
IT IS ORDERED:
1. Plaintiff’s application for attorney fees (Filing No. 25) is granted.
2.

The Social Security Administration is directed to pay the attorney fee in the

amount of $5,981.25 directly to the plaintiff, less any offset to satisfy a pre-existing debt
to the United States.
3. A judgment for attorney fees under the EAJA in the amount of $5,981.25 will
be entered this date.

DATED this 29th day of November, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

3