Herron v. Commissioner of Social Security

Filing 32

ORDER re 31 Stipulation filed by Commissioner of Social Security Administration. Plaintiff is awarded attorneys fees in the amount of $4,500 pursuant to 28 U.S.C. § 2412(d) payable to Plaintiff. Motions terminated: 28 MOTION for Attorney Fees filed by Michael Wade Herron. Signed by Magistrate Judge Jacquelyn D Austin on 11/22/2016. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Michael Wade Herron,

)
)
Plaintiff,
) Case No. 8:15-cv-01910-JDA
)
vs.
)
ORDER
)
Carolyn W. Colvin,
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________)___
This matter is before the Court for consideration of a stipulated agreement of
attorneys fees to Plaintiff for the successful representation of Plaintiff by Harry F. Smithson
in the underlying Social Security benefits action.1 [Doc. 31.] The Commissioner's decision
denying benefits to Plaintiff was reversed and remanded for further administrative
proceedings by order of this Court under sentence four of 42 U.S.C. § 405(g). [Doc. 26.]
Counsel for the parties have conferred and have agreed to an award of $4,500.00 for
attorney’s fees to Plaintiff. [Doc. 31.] The Court will review this agreement in accordance
with requirements of the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
APPLICABLE LAW
The EAJA provides:
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and other
expenses . . . , incurred by that party in any civil action . . . brought by or
against the United States . . . , unless the court finds that the position of the
United States was substantially justified or that special circumstances make
an award unjust.

1

As a part of the Stipulated Agreement, Plaintiff withdraws his previously filed
Petition for fees. [Doc. 31 at 1(withdrawing Petition filed at Doc. 28).]

28 U.S.C. § 2412(d)(1)(A); see also Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir.
1991) (stating that 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
substantially justified; (3) that no special circumstances make an award unjust; and (4) that
the claimant timely filed his petition supported by an itemized statement).
A claimant is a prevailing party if the case is remanded pursuant to sentence four
of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 301–02 (1993). Further, the
government's position is "substantially justified" if it "ha[s] a reasonable basis both in law
and in fact.” Pierce v. Underwood, 487 U.S. 552, 563 (1988). Finally, a fee petition is
timely if filed within thirty days of the final judgment. 28 U.S.C. § 2412(d)(1)(B).
ANALYSIS
Because Plaintiff is the prevailing party, the Commissioner does not contend that
its position was substantially justified, the Commissioner does not contend the agreed upon
award is unjustified, and Plaintiff timely filed and supported his petition for attorney’s fees,
the Court analyzes only whether Plaintiff’s requested award is reasonable. See Pierce v.
Underwood, 487 U.S. 552, 571 (1988) (noting that appellate courts review attorney’s fee
awards for an abuse of discretion); May v. Sullivan, 936 F.2d 176, 177 (4th Cir. 1991) (per
curiam) (citing Pierce, 487 U.S. at 571) (stating that “district courts have discretion to
determine a reasonable fee award”). Under the EAJA, "fees and other expenses" that may
be awarded to a prevailing party in a civil action against the government must be
"reasonable."

28 U.S.C. § 2412(d)(2)(A)(ii) (internal quotation omitted).

Congress

provided that the amount of fees awarded shall be based upon prevailing market rates for
the kind and quality of the services furnished, except that attorney’s fees shall not be

awarded in excess of $125 per hour unless the court determines that “an increase in the
cost of living or a special factor, such as the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.” Id.; Hyatt v. Barnhart, 315 F.3d 239, 249 (4th
Cir. 2002).
In an EAJA award, the Administration “is only charged with those fees and expenses
fairly attributable to the monitoring and investigatory activities that led to the discovery of
the dispute and to the litigation of that dispute.” Hyatt, 315 F.3d at 256. "Costs" are limited
to filing fees, copying, and printing charges. 28 U.S.C. § 1920; see also 28 U.S.C. §
2412(a)(1) (specifying that costs are limited to those enumerated in 28 U.S.C. § 1920).
Other items, such as postage, attorney travel, and telephone charges, are considered
"expenses" under the EAJA. See 28 U.S.C. § 2412(d)(1)(A); Int'l Woodworkers of Am. v.
Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (upholding award of expenses for telephone
charges, postage, air courier charges, and attorney travel and noting that such expenses
are those normally billed to a client and are routine under most fee statutes).
The Commissioner has stipulated to the payment $4,500.00 in attorneys fees to
Plaintiff. [Doc. 31 at 1.] The parties have also stipulated that the awarded attorneys fees
be made payable to Plaintiff and delivered to Plaintiff’s counsel, and that the Commissioner
will determine whether Plaintiff has any outstanding federal debt to be offset from the
attorney fees and will pay the balance of stipulated attorney fees remaining after
subtracting the amount of Plaintiff’s outstanding federal debt. [Id. at 1–2.] Upon review
and consideration of the stipulated agreement, in light of the EAJA, the Court approves
the stipulated agreement between the parties and finds the requested attorney’s fees are
reasonable.

CONCLUSION
Wherefore, based upon the foregoing, it is ORDERED that the stipulated agreement
[Doc. 31] is approved and Plaintiff is awarded attorney’s fees in the amount of $4,500
pursuant to 28 U.S.C. § 2412(d) payable to Plaintiff 2. Plaintiff’s Petitioner for Attorney’s
Fees [Doc. 28] is withdrawn pursuant to the stipulated agreement. The Court directs the
Commissioner to make the check, after subtracting the amount of Plaintiff’s outstanding
federal debt, payable to the Plaintiff and to deliver the check to the office of Plaintiff’s
counsel.
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
November 22, 2016
Greenville, South Carolina

2

The court notes that the fees must be paid to Plaintiff. See Astrue v. Ratliff, 505
U.S.––––, No. 08–1322, slip op. at 1 (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).