Senechal v. Astrue

Filing 14

ORDER granting 12 Motion for Attorney Fees and the Plaintiff is hereby awarded $2,547.55 for attorneys fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Signed by District Judge Martin Reidinger on May 16, 2011. (jhg) Modified text on 5/16/2011 (jhg).

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO.1:10cv168

WILL H. SENECHAL,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
Defendant.
)
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff's Motion for
Attorney’s Fees Under the Equal Access to Justice Act and the Social
Security Act. [Doc. 12].
I.

PROCEDURAL HISTORY
The Plaintiff Will Senechal initiated this action on August 16, 2010,

seeking review of the denial of his claim for benefits by the Defendant
Michael J. Astrue, Commissioner of Social Security ("Commissioner")
under the Social Security Act. [Doc. 1]. The Commissioner filed an
Answer to the Plaintiff's Complaint on October 27, 2010. [Doc. 6].
Thereafter, the Plaintiff filed a motion for summary judgment on the basis of

the administrative record. [Doc. 8]. The Government in response
consented to remand. [Doc. 9]. On March 9, 2011, the Court entered an
Order remanding the case to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g). [Doc. 10].
The Plaintiff now moves for an award of attorney's fees pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA") in the
amount of $2,369.55. [Doc. 10]. In response, the Government states that
the parties have agreed to the amount of $2,369.55 for attorney’s fees to
be made payable to the Plaintiff for full settlement in satisfaction of any and
all claims for attorney’s fees under the Equal Access to Justice Act, 28
U.S.C. § 2412(d). [Doc. 13].
Sua sponte, the Court notes that Plaintiff’s filing is out of time, being
made more than 30 days after the March 9, 2010 final judgment in this
matter. 28 U.S.C. 2412(d)(1)(B). As Defendant has not objected, the
Court in its discretion will entertain the motion.
II.

ANALYSIS
Under the EAJA, the Court must award attorney's fees to a prevailing

party in a civil action brought against the United States unless the Court
finds that the Government's position was “substantially justified” or that

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“special circumstances” would make such an award unjust. 28 U.S.C. §
2412(d)(1)(A). Because the Court ordered this case be remanded to the
Commissioner 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.
Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239
(1993).
In the present case, the Commissioner does not contest the Plaintiff’s
request for fees. In light of the Court’s prior remand of this matter, and in
the absence of any contention by the Commissioner that its position was
substantially justified or that special circumstances exist that would render
an award of attorney's fees unjust, the Court concludes that the Plaintiff is
entitled to an award of attorney's fees under the EAJA.
Having determined that the Plaintiff is entitled to an award, the Court
now turns to the issue of the amount of fees to be awarded. The parties
have agreed that the Plaintiff should be awarded a total of $2,369.55 in
attorney's fees. In support of this request, the Plaintiff submits documents
showing the Consumer Price Index for March 1996 and August 2007 1,

1

The Court does not know the significance of the date August 2007 to this EAJA
petition. The case itself was filed in 2010, and the favorable judgment, which is the
trigger for EAJA fees, was entered on March 9, 2011.
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respectively, as well as affidavits of counsel and billing records detailing the
14.2 hours claimed by counsel and paralegals in preparing this case. [Doc.
12 & 12.-1].
Under the EAJA, an award of attorney's fees must be "reasonable,"
both with respect to the hourly rate charged and the number of hours
claimed. See Hyatt v. Barnhart, 315 F.3d 239, 248 (4th Cir. 2002) (quoting
28 U.S.C. § 2412(d)(2)(A)(ii)). The Court has broad discretion to determine
what constitutes a reasonable fee award. See 28 U.S.C. § 2412(b); May v.
Sullivan, 936 F.2d 176, 177 (4th Cir. 1991) (per curiam).
With regard to an attorney's hourly rate, the EAJA provides, in
pertinent part, as follows:
The amount of fees awarded . . . shall be based upon
prevailing market rates for the kind and quality of the
services furnished, except that . . . attorney fees shall
not be awarded in excess of $125 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). The decision to grant an upward adjustment
of this statutory cap is a matter within the Court’s sound discretion. Payne
v. Sullivan, 977 F.2d 900, 901 (4th Cir. 1992).

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The Consumer Price Index data published by the Bureau of Labor
Statistics reflects that the cost of living increased from 155.7 in March
1996, the date that the statutory rate of $125 per hour was established, to
223.47 in March 2011, the date of the Court’s Judgment remanding this
case 2, an increase of 43.5%. The Court finds that this increase in the cost
of living justifies a corresponding increase in the hourly rate in this case.
The Court further finds that this higher hourly rate is consistent with the
prevailing market rates for services charged by lawyers of similar talents
and experience in this District. Accordingly, the Court concludes that the
Plaintiff is entitled to an award of attorney’s fees based upon an hourly rate
of $179.41.
Furthermore, upon careful review of counsel's time sheets and
affidavits, the Court finds that the number of hours claimed by the Plaintiff’s
attorney is reasonable. Based upon a reasonable hourly rate of $179.41
per hour for 14.2 attorney hours expended, the Court concludes that the
Plaintiff’s requested fee, as adjusted by correction of the clerical error in
rate calculation, is justified.

2

It is this date, rather than the August 2007 date (which the Court in its discretion
interprets as having been entered through clerical error), that the EAJA permits as the
end point for fees that are payable thereunder.
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The Plaintiff requests that the fee award be paid directly to his
attorney. [Doc. 12]. The Defendant has agreed that, should a conforming
assignment be produced, he would accept an Assignment of EAJA Fees by
plaintiff to plaintiff’s counsel, and pay EAJA fees directly to plaintiff’s
counsel, if it is subsequently shown at the time of the EAJA order that the
prevailing party owes no debt to the government that would be subject to
offset. [Doc. 13]. To date, Plaintiff has not submitted an executed
assignment in support of his request.
The Court finds that this proposal sufficiently balances the interests
addressed in Astrue v. Ratliff. 130 S.Ct. 2521, 2010 WL 2346547 (June
14, 2010). The Court generally will not disturb consensual, compliant
arrangements such as this. Accordingly, the Court concludes that if a
conforming assignment is produced, the award of EAJA fees is payable in
the manner reflected in Defendant's Response [Doc. 13]; otherwise, it
payable directly to the Plaintiff himself.
ORDER
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff's
Motion for Attorney’s Fees Under the Equal Access to Justice Act and the
Social Security Act [Doc. 12] is hereby GRANTED and:

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(1)

The Plaintiff is hereby awarded $2,547.55 for attorney’s fees and
expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d).

(2)

Defendant shall inform Plaintiff’s counsel whether Plaintiff does owe a
debt to the government by which this fee award may be offset no
later than 30 days from the entry of this Order.
IT IS FURTHER ORDERED that no additional petition pursuant to 28

U.S.C. § 2412(d) shall be filed.
IT IS SO ORDERED.
Signed: May 16, 2011

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