Peek v. Astrue

Filing 18

MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 14 Motion for Attorney Fees. Signed by District Judge Martin Reidinger on 12/06/2010. (thh)

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P e e k v. Astrue D o c . 18 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO.1:09cv301 D W AY N E PEEK, ) ) P l a i n t if f , ) ) vs . ) ) M IC H AE L J. ASTRUE, ) C o m m is s io n e r of Social Security, ) ) D e fen d a n t. ) ) _______________________________ ) M E M O R AN D U M OF D E C IS IO N AND ORDER TH IS MATTER is before the Court on the Plaintiff's Motion for A tto rn e y's Fees Under the Equal Access to Justice Act and the Social S e c u rity Act. [Doc. 14]. I. P R O C E D U R AL HISTORY T h e Plaintiff Dwayne Peek initiated this action on August 6, 2009, s e e k in g review of the denial of his claim for benefits by the Defendant M ic h a e l J. Astrue, Commissioner of Social Security ("Commissioner") u n d e r the Social Security Act. [Doc. 1]. The Commissioner filed an A n s we r to the Plaintiff's Complaint on October 15, 2009. [Doc. 3]. Thereafter, the Plaintiff filed a motion for summary judgment on the basis of th e administrative record. [Doc. 5]. The Government in response c o n s e n te d to remand. [Doc. 9]. On February 16, 2010, the Court entered a n Order remanding the case to the Commissioner pursuant to sentence fo u r of 42 U.S.C. 405(g). [Doc. 12]. The Plaintiff now moves for an award of attorney's fees pursuant to th e Equal Access to Justice Act, 28 U.S.C. 2412(d) ("EAJA") in the a m o u n t of $2,762.50. [Doc. 14]. In response, on February 19, 2010 the G o ve rn m e n t stipulated that that sum may be made payable directly to P la in tiff's counsel, provided that this is the only motion filed by the Plaintiff in this case pursuant to the EAJA. [Doc. 15]. II. A N A L Y S IS U n d e r the EAJA, the Court must award attorney's fees to a prevailing p a r ty in a civil action brought against the United States unless the Court fin d s that the Government's position was "substantially justified" or that "s p e c ia l circumstances" would make such an award unjust. 28 U.S.C. 2 4 1 2 (d )(1 )(A ). Because the Court ordered this case be remanded to the C o m m is s io n e r pursuant to sentence four of 42 U.S.C. 405(g), the Plaintiff is properly considered a "prevailing party" in this action. See Shalala v. 2 S c h a e fe r, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1 9 9 3 ). In the present case, the Commissioner does not contest the Plaintiff's re q u e s t for fees. In light of the Court's prior remand of this matter, and in th e absence of any contention by the Commissioner that its position was s u b s ta n tia lly justified or that special circumstances exist that would render a n award of attorney's fees unjust, the Court concludes that the Plaintiff is e n title d to an award of attorney's fees under the EAJA. H a v in g determined that the Plaintiff is entitled to an award, the Court n o w turns to the issue of the amount of fees to be awarded. Plaintiff has s u b m itte d affidavits of counsel and billing records detailing the hours c la im e d in preparing this case. [Doc. 14-3]. Under the EAJA, an award of attorney's fees must be "reasonable," b o th with respect to the hourly rate charged and the number of hours c la im e d . See Hyatt v. Barnhart, 315 F.3d 239, 248 (4th Cir. 2002) (quoting 2 8 U.S.C. 2412(d)(2)(A)(ii)). The Court has broad discretion to determine wh a t constitutes a reasonable fee award. See 28 U.S.C. 2412(b); May v. S u lliva n , 936 F.2d 176, 177 (4th Cir. 1991) (per curiam). 3 W ith regard to an attorney's hourly rate, the EAJA provides, in p e rtin e n t part, as follows: T h e amount of fees awarded . . . shall be based upon p re va ilin g market rates for the kind and quality of the s e rv ic e s furnished, except that . . . attorney fees shall n o t be awarded in excess of $125 per hour unless the c o u rt determines that an increase in the cost of living o r a special factor, such as the limited availability of q u a lifie d attorneys for the proceedings involved, ju s tifie s a higher fee. 2 8 U.S.C. 2412(d)(2)(A)(ii). The decision to grant an upward adjustment o f this statutory cap is a matter within the Court's sound discretion. Payne v. Sullivan, 977 F.2d 900, 901 (4th Cir. 1992). The Court notes that Plaintiff has submitted no evidence in support of a n increase over the statutory rate of $125.00 per hour. Customarily, the C o n s u m e r Price Index, specifically the CPI-U, for the months in which re m a n d was ordered and in which the statutory rate was established, n a m e ly March 1996, are accepted in support of an hourly rate in excess of th e statutory rate. The Court asks that Plaintiff submit such evidence with fu tu re fee requests under the EAJA. Examining those rates sua sponte, a n d noting the parties' agreement to an award of $2,762.50, the Court finds P la in tiff's requested hourly rate of $170.00 to be reasonable. The Court fu rth e r finds that this higher hourly rate is consistent with the prevailing 4 m a rk e t rates for services charged by lawyers of similar talents and e xp e rie n c e in this District. Accordingly, the Court concludes that the P la in tiff is entitled to an award of attorney's fees based upon an hourly rate o f $170.00. F u rth e rm o re , upon careful review of counsel's time sheets and a ffid a vits , the Court finds that the number of hours claimed by the Plaintiff's a tto rn e ys and paralegal staff are reasonable. Based upon a reasonable h o u r ly rate of $170.00 per hour for 16.25 attorney hours, the Court c o n c lu d e s that the Plaintiff's requested fee is justified. T h e parties request that the fee award be paid directly to Plaintiff's a tto rn e y. In support of this request, the Plaintiff submits an executed a s s ig n m e n t purporting to assign any and all EAJA fees to which he is e n title d to his attorneys. [Doc. 14-2]. The Court notes that the parties' re q u e s t was made in February 2010, and reflected payment practices then c o m m o n in the District. However, subsequent to the filing of the parties' re q u e s t, a split1 among the federal circuits over the conflict between The 4th, 10th and 11th Circuits held that EAJA fees are payable only to the prevailing claimant, and thus, such fees are subject to administrative offset for any other non-tax debts that the claimant owes to the Government. See Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 137 (4th Cir. 2009), Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir.), cert. denied, 129 S.Ct. 724, 172 L.Ed.2d 730 (2008); Manning v. Astrue, 510 F.3d 1246, 1252 (10th Cir. 2007), cert. denied, 129 S.Ct. 486, 172 L.Ed. 355 (2008). The 6th and 8th Circuits had held that EAJA fees may be awarded directly to the prevailing 1 5 T re a s u ry Offset rules applicable to the Social Security Administration's p a ym e n t of EAJA fees and a custom of EAJA fees being awarded directly to a prevailing party's attorney was addressed by the U.S. Supreme Court in Astrue v. Ratliff, 560 S.Ct.--, 2010 WL 2346547 (June 14, 2010). The C o u rt clarified that the "prevailing party" entitled to benefits under the EAJA is the claimant, not his attorney. Ratliff at *4-7. T h e Fourth Circuit has not specifically addressed, and the Ratliff case d id not resolve, whether a court may order the payment of a fee award d ire c tly to a prevailing party's attorney where the party has executed a valid a s s ig n m e n t of any interest in such award and no offset-qualifying debt e xis te d . In light of the parties' pre-Ratliff submissions and the later Ratliff d e c is io n , the Court concludes it must deny the request to award EAJA fees d ire c tly to Plaintiff's counsel, without prejudice to the parties' opportunity to m a k e supplemental motion(s) that harmonize their request to honor P la in tiff's assignment with the ruling in Ratliff. party's attorney and cannot be used to offset the claimant's debt. See Ratliff v. Astrue, 540 F.3d 800, 802 (8th Cir. 2008), cert. granted, S.Ct. , 2009 WL 1146426 (Sep. 30, 2009); King v. Comm'r of Soc. Sec., 230 F. App'x 476, 481 (6th Cir. Mar. 28, 2007). 6 ORDER A c c o rd in g ly, IT IS, THEREFORE, ORDERED that the Plaintiff's M o tio n for Attorney's Fees Under the Equal Access to Justice Act and the S o c ia l Security Act [Doc. 18] is hereby GRANTED IN PART as follows: (1) T h e Clerk of Court shall enter judgment in favor of and payable to the P la in tiff and against the Defendant in the amount of $2,762.50 for a tto rn e y's fees and expenses awarded pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d). (2) T h e Plaintiff is further awarded $350.00 in costs, to be certified by the O ffic e of the United States Attorney to the Department of Treasury for p a ym e n t from the Judgment Fund. (3) D e fe n d a n t shall inform Plaintiff's counsel whether Plaintiff does owe a d e b t to the government by which this fee award may be offset no la te r than 45 days from the entry of this Order. A n d Plaintiff's Motion is DENIED IN PART as follows: (4 ) P a ym e n t of the sums approved must be made directly to Plaintiff and n o t to his counsel, without prejudice to the parties' right, within 20 d a ys of the entry of this Order, to submit supplemental motions on 7 th e issue of honoring valid assignments after Ratliff for the Court's c o n s id e r a tio n . IT IS FURTHER ORDERED that no additional petition pursuant to 28 U .S .C . 2412(d) shall be filed. IT IS SO ORDERED. Signed: December 6, 2010 8

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