Fickler v. Astrue

Filing 29

MEMORANDUM AND ORDER granting 27 Fickler's Motion for Attorney Fees. By separate document, the Court shall enter judgment for Fickler and against defendant, providing that Fickler is awarded attorney fees of $6,571.19 and costs of $350, with both amounts to be paid directly to Fickler. Ordered by Judge John M. Gerrard. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAELLE D. FICKLER,
Plaintiff,
vs.

8:11-CV-440
MEMORANDUM AND ORDER ON
MOTION FOR ATTORNEY FEES

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the plaintiff Michaelle Fickler's
motion for attorney fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412. Filing 27. Fickler has requested an award of fees and expenses
in the amount of $6,571.19, which represents 26 hours of attorney work at an
average rate of $183.70 per hour and 19.8 hours of legal assistant work at
$90 per hour.1 Fickler has also requested an award of costs of $350 for the
filing fee. The defendant has no objection to the amount of fees or costs
requested. Filing 28.
The Court has determined that Fickler was the prevailing party in this
action, as this case was remanded to the Commissioner for further action.
The Court further finds that the position of the Commissioner was not
substantially justified, for the reasons set forth in the Court's previous
Memorandum and Order (filing 25). See Koss v. Sullivan, 982 F.2d 1226 (8th
Cir. 1993). The application for fees was filed in a timely fashion.2 Finally, the
Court finds that the fees requested are reasonable.
The maximum hourly fee of $125 specified in 28 U.S.C. § 2412(d)(1)(D)(2)(A) was adjusted
to account for inflation. Fickler has presented uncontested evidence that a cost-of-living
increase is warranted (filing 27-1). See, § 2412(d)(2)(A)(ii); Johnson v. Sullivan, 919 F.2d
503, 505 (8th Cir. 1990).
1

An Equal Access to Justice Act application based on a district court judgment remanding
a case pursuant to sentence four of 42 U.S.C. § 405(g) must be filed no later than 30 days
after the sentence four judgment has been entered and the appeal period has run such that
the judgment is no longer appealable. See Pottsmith v. Barnhart, 306 F.3d 526, 527-28 (8th
Cir. 2002); see also, Shalala v. Schaefer, 509 U.S. 292, 302 (1993); Melkonyan v. Sullivan,
501 U.S. 89, 94-97 (1991).
2

Therefore, Fickler is entitled to an award of attorney fees and costs in
the amounts requested. An award of fees under § 2412(d) must be paid to the
"prevailing party," i.e., the litigant, as opposed to counsel, and is subject to
any administrative offset necessary to satisfy any pre-existing debt the
litigant might owe the United States. Astrue v. Ratliff, 130 S. Ct. 2521 (2010).
Because § 2412(a)(1) states that costs, like fees, are awarded to the
"prevailing party," the costs shall also be paid directly to Fickler.
Additionally, as defendant notes, the award of costs is to be paid from the
Judgment Fund administered by the United States Treasury, rather than by
the Social Security Administration. See, 28 U.S.C. §§ 2412(a), (c)(1), 2414; 31
U.S.C. § 1304. Accordingly,
IT IS ORDERED:
1.

Fickler's motion for attorney fees (filing 27) is granted.

2.

By separate document, the Court shall enter judgment for
Fickler and against defendant, providing that Fickler is
awarded attorney fees of $6,571.19 and costs of $350, with
both amounts to be paid directly to Fickler.

Dated this 26th day of June, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge

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