Busbee v. Commissioner of Social Security Administration

Filing 32

ORDER granting 28 MOTION for Attorney Fees under EAJA, awarding fees in the amount of $4,020.00 and $16.00 in expenses. Signed by Honorable Timothy M. Cain on 08/23/2019.(bshr, )

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

Lora Ann Busbee,
Plaintiff,
vs.
Andrew M. Saul, Commissioner
of Social Security,
Defendant.

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Case No. 1:18-cv-943-TMC

ORDER

On August 8, 2019, Plaintiff Lora Ann Busbee filed a motion for attorney’s fees pursuant
to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, on the basis that she was the
prevailing party and that the position taken by the Commissioner1 in this action was not
substantially justified. (ECF No. 28). On August 21, 2019, Defendant filed a response stating that
he does not oppose payment of the attorney’s fees and expenses requested in Plaintiff’s motion.
(ECF No. 30).
Under the EAJA, a court shall award attorney’s fees to a prevailing party in certain civil
actions against the United States, unless it finds that the government's position was substantially
justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). 2 The
district courts have discretion to determine a reasonable fee award and whether that award should

1

On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security. Pursuant to
Fed. R. Civ. P. 25(d), he is automatically substituted for Defendant Nancy A. Berryhill who was
the Acting Commissioner of Social Security when this action was filed.
2
A party who wins a remand pursuant to sentence four of the Social Security Act, 42 U.S.C. §
405(g), is a prevailing party for EAJA purposes. See Shalala v. Schaefer, 509 U.S. 292, 300-302
(1993). The remand in this case was made pursuant to sentence four. (ECF Nos. 26, 27).

be made in excess of the statutory cap. Pierce v. Underwood, 487 U.S. 552 (1988); May v.
Sullivan, 936 F.2d 176, 177 (4th Cir. 1991).
District courts also have broad discretion to set the attorney fee amount. In determining
the fee award, “[e]xorbitant, unfounded, or procedurally defective fee applications . . . are matters
that the district court can recognize and discount.” 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)).
Additionally, 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).
Plaintiff has asked for the payment of attorney’s fees in the amount of $4,020.00 and
expenses in the amount of $16.00. (ECF No. 28 at 2). Defendant responded, stating that he does
not oppose payment of the requested amount of attorney’s fees and expenses. (ECF No. 30 at 1).
Despite there being no objection, however, the court is obligated under the EAJA to determine if
the fee is proper. See Design & Prod., Inc. v. United States, 21 Cl. Ct. 145, 152 (1990) (holding
that under the EAJA, “it is the court's responsibility to independently assess the appropriateness
and measure of attorney's fees to be awarded in a particular case, whether or not an amount is
offered as representing the agreement of the parties in the form of a proposed stipulation.”).
Applying the above standard to the facts of this case, the court concludes that the Commissioner’s
position was not substantially justified. Furthermore, after a thorough review of the record, the
court finds the unopposed request for fees and costs is appropriate. Accordingly, the court

2

GRANTS the Motion for Attorney’s Fees and Costs (ECF No. 28) and orders that Plaintiff be
awarded attorneys’ fees in the amount of $4,020.00 and expenses in the amount of $16.00.3
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
August 23, 2019
Anderson, South Carolina

3

The court notes that the fees must be paid to Plaintiff. See Astrue v. Ratliff, 560 U.S. 586 (2010)
(June 14, 2010) (holding that the plain text of the EAJA requires that attorney’s fees be awarded
to the litigant, thus subjecting EAJA fees to offset of any pre-existing federal debts); see also
Stephens v. Astrue, 565 F.3d 131, 139 (4th Cir. 2009) (same).
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