Wescott v. Astrue

Filing 31

CONSENT ORDER granting 28 Motion for Attorney Fees. Signed by Magistrate Judge William M Catoe on 10/14/08.(ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA G R E E N V IL L E DIVISION N o w e ll S. Lesser, Petitioner, N a t a s h a W e s c o t t, Plaintiff, vs. M ic h a e l J. Astrue, C o m m is s io n e r of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 6:07-2687-DCN-W M C

ORDER

T h is matter is before the court on a petition for approval of attorney fees s u b m itte d by Nowell S. Lesser for his successful representation of the plaintiff in the u n d e rlyin g Social Security benefits action. The court may make such an award pursuant to th e Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). T h e Commissioner's decision denying benefits to the plaintiff was reversed and re m a n d e d for further administrative proceedings upon the motion of the Commissioner by o rd e r of the court on May 21, 2008. The petitioner seeks attorney fees of $4,800.00 ($150.00 p e r hour for 32 attorney hours). The Commissioner does not object to the petitioner's re q u e s t for attorney fees and costs.

AP P L IC AB L E LAW AND CONCLUSIONS T h e EAJA provides: [A ] court shall award to a prevailing party . . . fees and other e x p e n s e s . . . incurred by that party in any civil action . . . brought b y or against the United States . . . unless the court finds that the p o sitio n of the United States was substantially justified or that s p e c ia l circumstances make an award unjust.

U.S.C. § 2412(d)(1)(A). The eligibility requirements for an award of fees under the EAJA are: ( 1 ) that the claimant is a prevailing party; (2) that the government's position was not s u b sta n tia lly justified; (3) that no special circumstances make an award unjust; and (4) that th e claimant timely filed his petition supported by an itemized statement. Id.; see also C r a w fo rd v. Sullivan, 935 F.2d 655, 656 (4 th Cir.1991). T h e test for substantial justification is one of reasonableness ­ did the agency's p o sitio n have a "reasonable basis both in law and fact," or was it "justified to a degree that c o u ld satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). This s ta n d a rd allows the government some leeway in litigation without permitting it to adopt p o sitio n s arbitrarily. "[T]he government has the burden of proving that its litigation position w a s substantially justified." Crawford v. Sullivan, 935 F.2d 655, 657 (4 th Cir. 1991) (citing L iv e ly v. Bowen, 858 F.2d 177, 180 (4 th Cir. 1988)). T h e plaintiff was the prevailing party in this action, and the government's p o s itio n was not substantially justified. 28 U.S.C. § 2412(d)(1)(A). The petitioner has p ro v id e d an itemized statement stating the time expended in preparing this case. The d e fe n d a n t does not object to an award of EAJA fees and further does not object to the a m o u n t sought by the petitioner. N o w , therefore, IT IS ORDERED that the defendant pay to the plaintiff Four Thousand Eight H u n d r e d and 00/100 ($4,800.00) Dollars1 in attorney fees. IT IS SO ORDERED. s /W illia m M. Catoe U n ite d States Magistrate Judge O c to b e r 14, 2008 G r e e n v ille , South Carolina

This court understands that it is the Commissioner's practice is to make the check payable to the plaintiff but to send the EAJA payment to the plaintiff's attorney's office, which reduces the risk that the attorney will not receive her fees from the plaintiff.

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