Downing v. Commissioner of Social Security Administration

Filing 30

ORDER granting in part 26 MOTION for Attorney Fees under EAJA, awarding $3,997.50 in fees, $407.00 in costs, and $16.00 in expenses. Signed by Honorable Bruce Howe Hendricks on 10/16/2018.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Michael E. Downing,

)
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Plaintiff,
)
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v.
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Nancy A. Berryhill, Acting
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Commissioner of Social Security
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Administration,
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Defendant.
)
________________________________)

Civil Action No. 0:16-cv-3501-BHH

ORDER

This matter is before the Court upon Plaintiff’s motion for attorney’s fees and costs
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. In the motion,
Plaintiff seeks attorney’s fees in the amount of $5,606.25, which represents 28.75 hours
of attorney’s work at the hourly rate of $195.00, as well as $407.00 in costs and $16.00 in
expenses.

The Commissioner filed a response asserting that Plaintiff’s counsel’s

requested hours are excessive and unreasonable and asking the Court to reduce counsel’s
requested hours for a total of $3,997.50 in attorney’s fees.
Attorney’s fees may be awarded pursuant to EAJA where the government’s position
is not substantially justified. The substantial justification test is one of reasonableness in
law and fact. See Pierce v. Underwood, 487 U.S. 552, 565 (1988). The district court has
broad discretion to set the attorney fee amount. “[A] district court will always retain
substantial discretion in fixing the amount of an EAJA award. Exorbitant, unfounded, or
procedurally defective fee applications . . . are matters that the district court can recognize.”
Hyatt v. North Carolina Dep’t of Human Res., 315 F.3d 239, 254 (4th Cir. 2002) (citing
Comm’r v. Jean, 496 U.S. 154, 163 (1990)). Moreover, the court should not only consider

the “position taken by the United States in the civil action,” but also the “action or failure
to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D), as
amended by P.L. 99-80, § 2(c)(2)(B).
In evaluating a request for attorney’s fees and costs pursuant to EAJA, the
government bears the burden of proving that its position was substantially justified. To
meet its burden, the government must establish that its case has a reasonable basis in
both law and fact. Pierce, 487 U.S. at 562-563. “In other words, favorable facts will not
rescue the government from a substantially unjustified position on the law; likewise, an
accurate recital of law cannot excuse a substantially unjustified position on the facts.”
Thompson v. Sullivan, 980 F.2d 280, 281 (4thCir, 1992). “To be ‘substantially justified’
means, of course, more than merely undeserving of sanctions for frivolousness.” Pierce,
487 U.S. at 566. However, “a position can be justified even though it is not correct, and
. . . it can be substantially (i.e., for the most part) justified if a reasonable person could think
it correct, that is, if it has a reasonable basis in law and fact.” Id. at n.2.
Here, the Commissioner argues that Plaintiff’s counsel seeks an unreasonable and
excessive number of compensable hours. Specifically, the Commissioner points out that
Plaintiff’s counsel requests fees for 28.75 hours of work, which includes 21.3 hours spent
on preparing the initial brief. Because Plaintiff prevailed on one of three issues (regarding
his use of a cane) and that issue comprised approximately one page of Plaintiff’s brief, the
Commissioner argues that the requested number of hours is excessive and asks that the
Court reduce Plaintiff’s request to no more than 20.50 hours.
Plaintiff filed a reply objecting to the Commissioner’s argument that its position was
substantially justified. Importantly, however, nowhere in the Commissioner’s response
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does the government argue that its position was substantially justified. Rather, the
Commissioner asserts only that Plaintiff bears the burden of proving the number of hours
reasonably expended, and that Plaintiff’s requested hours are excessive and unreasonable
under the circumstances of the Court’s remand. See Hensley v. Eckerhart, 461 U.S. 424,
432-37. After review, the Court agrees with the Commissioner. Because Plaintiff’s
success was limited in comparison to the scope of the litigation as a whole, the Court finds
it appropriate to reduce Plaintiff’s requested hours to 20.5 hours at $195.00 for a total of
$3,997.50 in attorney’s fees, which the Court finds reasonable in relation to the results
obtained.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s motion (ECF No. 26) is granted in part, and Plaintiff is
awarded attorney’s fees in the amount of $3,997.50, which represents 20.50 hours of
attorney’s work at the hourly rate of $195.00, in addition to $407.00 in costs and $16.00
in expenses, pursuant to EAJA, made payable to Plaintiff and delivered to the business
address of Plaintiff’s counsel.1
IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce Howe Hendricks
United States District Judge
October 16, 2018
Charleston, South Carolina

1

As the Supreme Court made clear in Astrue v. Ratliff, attorney’s fees under EAJA are made payable
to the prevailing litigant and not to the litigant’s attorney. 560 U.S. 586, 598 (2010) (holding that the plain text
of EAJA requires that attorney’s fees be awarded to the litigant, thus subjecting EAJA fees to an offset of any
pre-existing federal debts).

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