Cercoply v. Commissioner of the Social Security Administration

Filing 38

ORDER granting 35 Motion for Attorney Fees under EAJA. It is ordered that Plaintiff is awarded $4,812.38 in attorney's fees plus costs of $350.00 as requested. Signed by Magistrate Judge Thomas E Rogers, III on 5/6/2013.(gnan )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
NORMAN J. CERCOPLY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

C/A No.: 4:11-02186-TER

ORDER

This matter is before the court on Plaintiff’s motion for attorney’s fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. 2412(d). Plaintiff seeks an award of $4.812.381 in EAJA
fees on the grounds that he is a prevailing party entitled to attorney’s fees by the EAJA. Plaintiff also
requests costs in the amount of §350.00 for the filing fee under the EAJA. While Defendant contests
the awarding of such EAJA fees asserting the government’s position was substantially justified,
Defendant did not object to the amount of EAJA fees requested or reimbursement of costs in the
amount of 350.00 for the filing fee. Further, Defendant asserts that the Plaintiff’s filing for EAJA
fees was premature because the time period as to all parties shall be 60 days from entry of judgment,
order or decree in the action. Therefore, Defendant asserts that the court should hold in abeyance
its ruling on Plaintiff’s motion until after the six month period has expired on April 23, 2013.
Plaintiff filed a reply to the Defendant’s response. (Doc. #37).
Plaintiff’s initial request for Social Security benefits was denied and Plaintiff sought review
of the Commissioner’s decision in this Court. Plaintiff was ultimately successful, obtaining a
judgment filed February 22, 2013, that reversed and remanded the case to the Commissioner for a
new hearing pursuant to sentence four of 42 U.S.C. §405(g). (Doc. #32).

1

Plaintiff asserts that the fees requested of $4,812.38 is comprised of $186.39 per hour
for 17 hours for a total of $3,168.63 for Robertson Wendt; $125.00 per hour for 13.15 hours for a
total of $1,643.75 for Geoffrey Wendt.

Under the EAJA, a court shall award attorney's fees to a prevailing party2 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). The district
courts have discretion to determine a reasonable fee award and whether that award should be made
in excess of the statutory cap. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490
(1988); May v. Sullivan, 936 F.2d 176, 177 (4th Cir.1991).
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 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, 110 S.Ct. 2316, 110 L.Ed.2d 134 (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).
After a through review of the record and applying this standard to the facts of this case, the
court concludes that the position of the Commissioner was not substantially justified. Plaintiff has
made a proper showing under the EAJA that the fees and costs sought are proper.
Based on the foregoing and after considering the briefs and materials submitted by the
parties, it is ordered that Plaintiff is awarded $4,812.38 in attorney's fees plus costs of $350.00 as
requested.3

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, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). The remand in this case was made pursuant
to sentence four.
3

The fees must be paid to Plaintiff. See Astrue v. Ratliff, –––U.S. ––––, ––––, 130 S.Ct.
2521, 2527, 177 L.Ed.2d 91 (2010) (holding that the plain text of the EAJA requires that
2

IT IS SO ORDERED.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United Stated Magistrate Judge
May 6, 2013
Florence, South Carolina

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).
3