Pryce-Dawes v. Social Security Administration
OPINION AND ORDER by Magistrate Judge T Lane Wilson ; granting 31 Motion for Attorney Fees (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
HEATHER DAWN PRYCE-DAWES,
MICHAEL J. ASTRUE,
Social Security Administration,
Case No. 10-cv-085-TLW
OPINION AND ORDER
Before the undersigned is plaintiff’s Motion for Attorney Fees Pursuant to the Equal
Access to Justice Act. (Dkt. # 31). Plaintiff seeks an award of attorney fees pursuant to 28
U.S.C. § 2412 (the “EAJA”) in the total amount of $6,708.15. The Commissioner does not object
to a fee award but does object to the reasonableness of the request. (Dkt. # 32).
Title 28, Section 2412 of the U.S. Code requires the United States to pay attorney fees and
expenses to a “prevailing party,” unless the Court finds the position of the United States was
substantially justified, or special circumstances make an award unjust. 28 U.S.C. § 2412(d).
The United States bears the burden of proving that its position was substantially justified. Kemp
v. Bowen, 822 F.2d 966, 967 (10th Cir. 1987). In addition, once an EAJA application is filed, the
government must justify both its position in any underlying administrative proceedings and in any
subsequent court litigation. Hackett v. Barnhart, 475 F.3d 1166, 1170 (10th Cir. 2007). Since
the government does not object to a fee award, there can be no finding that the government has met
its burden of showing that its position was substantially justified.
The government asserts that the fee amount sought by plaintiff is unreasonable. Only
“reasonable attorney fees” may be awarded under the EAJA. 28 U.S.C. § 2412(d)(2)(A). The
Court is required to examine the request to determine whether the fees requested are reasonable,
and the plaintiff bears the burden of proving that the requested hours are reasonable. Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). Plaintiff seeks an award for 42.6 hours of attorney time
expended on this federal action which counsel has subsequently, voluntarily reduced by 10%.
The Commissioner argues that counsel for plaintiff has billed for 12 unnecessary hours in writing a
3 page reply brief.
Therefore, the Commissioner suggests that rather than the $6,708.15
requested by plaintiff, that plaintiff’s counsel be awarded $5,353.50. The undersigned has
reviewed the time records submitted by plaintiff’s counsel and finds them reasonable. Although
the Commissioner did not raise any new issues in its response brief, the Tenth circuit has held that
a reply brief that addresses the Commissioner’s response, emphasizing the administrative law
judge’s errors, does not constitute time that was either unnecessary or redundant. Cameron v.
Barnhart, 47 Fed.Appx. 547, 551-552 (10th Cir. 2002)
Based on the foregoing, the undersigned GRANTS plaintiff’s Motion for Equal Access to
Justice Act Fees [dkt. # 31] in the amount of $6,708.15. Pursuant to the Commissioner’s usual
practice, the check should be made payable to plaintiff and mailed to counsel’s address. See
Manning v. Astrue, 510 F.3d 1246, 1254-55 (10th Cir. 2007) (the award of EAJA attorney fees is
to claimant and not to the attorney). If attorney fees are also awarded and received by counsel
under 42 U.S.C. § 406(b) of the Social Security Act, counsel is directed to refund the smaller
award to plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
SO ORDERED this 25th day of July, 2011.
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