Covington v. Commissioner of Social Security

Filing 19

ORDER GRANTING PLAINTIFF'S MOTION FOR AN AWARD OF FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT 17 . Signed by Judge James D. Todd on 12/18/2014. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DARLENE COVINGTON,
Plaintiff,
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 13-1251-JDT

ORDER GRANTING PLAINTIFF’S MOTION FOR AN AWARD OF FEES
AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT

The Plaintiff, Darlene Covington, filed this action to obtain judicial review of the
Defendant Commissioner’s determination that she was not disabled. On September 26, 2014,
the Court reversed the Commissioner’s decision and remanded for further administrative
proceedings pursuant to sentence four of 42 U.S.C. § 405(g); judgment was entered on
October 1, 2014. (ECF Nos. 15 & 16.) Plaintiff has now filed a motion for an award of
attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).
(ECF No. 17.)
Under the EAJA, 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). As the Court reversed and remanded
the Commissioner’s decision pursuant to sentence four of 42 U.S.C. § 405(g), Plaintiff
qualifies as a prevailing party under the EAJA. Attached to Plaintiff’s motion is an email
from the office of opposing counsel indicating that the Commissioner does not object to the
requested fee award. Thus, the Commissioner does not contend that her position in this case
was substantially justified. The Court also concludes that there are no special circumstances
that would make an award unjust. Consequently, Plaintiff is entitled to an award under the
EAJA.
Plaintiff’s attorney, Charles L. Holliday, has submitted documentation in support of
the EAJA motion, consisting of his own Declaration (ECF No. 17-1 at 1-2) and an itemized
time statement documenting 13.5 hours of work in this case (id. at 4-5). The Court finds this
number of hours to be reasonable. Plaintiff has requested an award of fees in the amount of
$2,524.77. The EAJA provides 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
. . . justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). Plaintiff has requested an award at
the rate of $187.02 per hour. Based on the increase in the cost of living, the Court also finds
that Plaintiff’s requested hourly rate is reasonable.
Plaintiff further requests an award of costs in the amount of $400 for the filing fee
paid in this case. The definition of “fees and expenses” under the EAJA does not include
filing fees. See 28 U.S.C. § 2412(d)(1)(A). However, fees of the Clerk may be taxed as

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costs under 28 U.S.C. § 1920, and the cost statute is expressly incorporated into
§ 2412(a)(1).1
The motion for attorney fees and costs is GRANTED. Plaintiff is awarded attorney
fees under the EAJA in the amount of $2,524.77. Plaintiff is also awarded costs in the
amount of $400.
The motion for an EAJA award includes Plaintiff’s Affidavit, in which she assigned
to her attorney her right to receive any EAJA fees. (ECF No. 18.) In Astrue v. Ratliff, 560
U.S. 586 (2010) the Supreme Court held that EAJA awards belong to the litigant rather than
to the attorney and may be offset to satisfy the litigant’s pre-existing debt to the Government.
Therefore, if it is verified that Plaintiff owes no pre-existing debt to the United States, the
Commissioner should honor the fee assignment and pay the EAJA award directly to counsel.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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“Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920
of this title . . . may be awarded to the prevailing party in any civil action brought by or against the United States or
any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction
of such action.” § 2412(a)(1).
While an award of attorney fees under the EAJA is paid by the Social Security Administration, see
§ 2412(d)(4), an award of costs is paid from the Judgment Fund administered by the U.S. Department of the
Treasury, see 31 U.S.C. § 1304.

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