Ashburn v. Social Security Administration

Filing 23

REPORT AND RECOMMENDATION: The undersigned Magistrate Judge respectfully recommends that Plaintiff's motion (Docket Entry No. 20 ) be GRANTED. Signed by Magistrate Judge Barbara D. Holmes on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
LARRY ASHBURN
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security

To:

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No. 2:15-0055

The Honorable Kevin H. Sharp, Chief District Judge

REPORT AND RECOMMENDATION
Currently pending is Plaintiff’s motion for award of attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d) (the “Motion”), in which Plaintiff requests an award
of $4,800.00. (Docket Entry No. 20). Defendant has stated that it has no objection to the amount
requested. (Docket Entry No. 22). For the reasons that follow, the undersigned Magistrate Judge
respectfully recommends that Plaintiff’s motion (Docket Entry No. 20) be GRANTED.
The Equal Access to Justice Act (“EAJA”) states that the court,
shall award to a prevailing party ... fees and other expenses ... incurred by that
party in any civil action ... including proceedings for judicial review of agency
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.
28 U.S.C. § 2412(d)(1)(A). A claimant who wins a remand of his Social Security appeal may be
considered a “prevailing party” regardless of whether benefits are ultimately awarded. Fees
awarded pursuant to the EAJA are paid by the Social Security Administration (the
“Commissioner”), and therefore do not impact a claimant’s future award of benefits. The

application for attorney fees under the EAJA must be filed within thirty (30) days of the date that
final judgment is entered by the court. 28 U.S.C. § 2412(d)(1)(B) and (d)(2)(G).
The Court entered an order granting Defendant’s motion for remand under sentence four
of 42 U.S.C. § 405(g), which reversed the decision of the Commissioner with respect to
Plaintiff’s application for benefits under the Social Security Act, and remanded the case to the
Commissioner for further proceedings. (Docket Entry No. 18). Plaintiff therefore qualifies as a
prevailing party under the EAJA. Additionally, the pending Motion was filed within ninety (90)
days of the date that final judgment was entered by the Court. (See Docket Entry No. 20).
Because Defendant has no objection to the pending Motion, the Court finds that the
Commissioner has not met its burden of demonstrating that its decision was “substantially
justified” under 28 U.S.C. § 2412(d)(1)(A). There is also no evidence to suggest that special
circumstances bar a fee award in this case.
The EAJA states the following with respect to the amount of attorney fees awarded to the
prevailing party:
The amount of fees awarded ... shall be based upon prevailing market rates for the
kind and quality of the services furnished, except that ... attorney 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.
28 U.S.C. § 2412(d)(2)(A). Plaintiff in this case requests a fee award in the amount of $4,800.00,
which represents 32 hours of work at an hourly rate of $150.00. (Docket Entry No. 21 at 5).
Counsel for Plaintiff includes an itemized report of the alleged time spent in connection with this
case. (See Docket Entry No. 20 at 4-5). Counsel for Plaintiff also asserts that, accounting for the
increase in cost of living as documented in the Consumer Price Index, the prevailing market rate
under the EAJA is between $198.00 and $240.00 per hour, which is a much higher rate than that

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requested by Plaintiff. (Id.). 1 In light of the rise in the cost of living since the enactment of the
EAJA statutory rate, as well as Defendant’s lack of opposition to the proposed hourly rate and
number of hours worked, the Court finds that Plaintiff’s requested hourly rate is reasonable, and
thus finds that $4,800.00 is a reasonable award for the work performed.
The Supreme Court has held that an EAJA fee is payable to the plaintiff as litigant, and
that payment may be subject to an offset to satisfy any pre-existing debt that the plaintiff owes
the United States. See Astrue v. Ratliff, 560 U.S. 586 (2010). The undersigned Magistrate Judge
therefore respectfully recommends that Plaintiff’s motion for attorney fees (Docket Entry
No. 21) be GRANTED and Defendant be ordered to pay Plaintiff the amount of $4,800.00, less
any offset amounts owed to the United States. 2 The check should be sent to and in care of
Plaintiff’s attorney, as it appears that “Plaintiff has agreed that the attorney fees awarded under
EAJA will end up being paid … to his attorney.” Williams v. Colvin, No. 2:13-00108, 2016 WL
1319722 at *2 (M.D. Tenn. April 5, 2016) (Sharp, C.J.)
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state
with particularity the specific portions of this Report and Recommendation to which objection is
made. Failure to file written objections within the specified time can be deemed a waiver of the
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Plaintiff attaches as an exhibit a database printout documenting the changes in the Consumer
Price Index since 1994. (Docket Entry No. 21 at 10).
2
Counsel for Plaintiff requests that such funds be paid directly to counsel, and not to Plaintiff.
(Docket Entry No. 21 at 1-2). That direction is contrary to the very case law cited by counsel for Plaintiff
in her brief. See Ratliff, 560 U.S. at 593 (“The fact that the [EAJA] statute awards to the prevailing party
fees in which her attorney may have a beneficial interest or a contractual right does not establish that the
statute ‘awards’ the fees directly to the attorney.”); see also Bryant v. Comm’r of Soc. Sec., 578 F.3d 443,
448 (6th Cir. 2009) (“[W]e are persuaded by the plain language of the EAJA and conclude that the
prevailing party, and not her attorney, is the proper recipient of attorney fees under the EAJA.”).
Therefore, the amount awarded must be paid to Plaintiff, and will be subject to the terms of Plaintiff’s fee
agreement with counsel. (See Docket Entry. No. 21 at 7). However, to facilitate compliance with the fee
agreement, the undersigned recommends that the check for payment of the awarded fees be sent directly
to Plaintiff’s attorney.

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right to appeal the District Court’s Order regarding the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,

__________________________________
BARBARA D. HOLMES
United States Magistrate Judge

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