Tulowiecki v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Roy S. Payne on 1/12/2015. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

MARK TULOWIECKI

§

v.

§

COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

§

CIVIL ACTION NO. 2:12-CV-00731

§

MEMORANDUM OPINION AND ORDER ON
PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT
On November 21, 2012, Plaintiff initiated this lawsuit by filing a complaint seeking judicial
review of the Commissioner’s decision denying his application for Social Security benefits. Having
ultimately prevailed in the District Court, Plaintiff now seeks Attorney Fees under the Equal Access
to Justice Act.
Background
On September 30, 2014, the District Court issued a Memorandum Opinion reversing and
remanding the final decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g)
of the Social Security Act.
Plaintiff now appears before the Court with his Unopposed Motion for Attorney Fees
Pursuant to 28 U.S.C. § 2412, the Equal Access to Justice Act (“EAJA”)(docket entry # 21). Based

1

on the supporting arguments and the Court’s sentence four remand, Plaintiff asserts that he is the
prevailing party for purposes of the EAJA and seeks a total of $ 6,510.73 for 34 hours of attorney
work and court costs.

The Commissioner has filed a response (docket entry #22).

The

Commissioner does not oppose Plaintiff’s Motion. See Commissioner’s Response at 1.
Discussion
The “dual purpose” of the EAJA is “to ensure adequate representation for those who need
it and to minimize the cost of this representation to taxpayers” Baker v. Bowen, 839 F.2d 1075, 1083
(5th Cir.), reh’g denied, 848 F.2d 66 (5th Cir. 1988). Eligibility for a fee award under the EAJA
requires, at a minimum, that the claimant be a prevailing party; that the Government’s position was
not substantially justified; that no special circumstances make an award unjust; and that any fee
application be submitted to the court within 30 days of final judgment and be supported by an
itemized statement. Comm’r INS v. Jean, 496 U.S. 154, 158 (1990); Murkeldove v. Astrue, 635 F.3d
784, 790 (5th Cir. 2011) (also noting the requirement that the claimant must “incur” attorney’s fees);
28 U.S.C. § 2412(d)(1)(A), (B). A “final judgment” is a judgment that is final and not appealable.
28 U.S.C. § 2412(d)(2)(G). With regard to the amount of fees, 28 U.S.C. § 2412(d)(2)(A) states:
(A) “fees and other expenses” includes the reasonable expenses of expert witnesses,
the reasonable cost of any study, analysis, engineering report, test, or project which
is found by the court to be necessary for the preparation of the party’s case, and
reasonable attorney fees (The amount of fees awarded under this subsection shall be
based upon prevailing market rates for the kind and quality of the services furnished,
except that (I) no expert witness shall be compensated at a rate in excess of the
highest rate of compensation for expert witnesses paid by the United States; and (ii)
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.).

2

A remand accomplished pursuant to the fourth sentence of 42 U.S.C. § 405(g) renders the
claimant a prevailing party regardless of whether the claimant is successful in obtaining benefits on
remand. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993). The Commissioner has the burden of
proving that the position of the United States in this matter was “substantially justified” and has not
done so here. Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir. 1986) (per curiam); see also
Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003). In addition, the Commissioner has not
shown or suggested special circumstances that would render an award unjust. Further, Plaintiff’s
motion was timely filed after the judgment became final. The motion was filed with an itemized
account. It is undisputed that Plaintiff actually incurred these fees by virtue of his agreement with
his attorney. See Murkeldove, 635 F.3d at 791.
The hourly attorney fee sought by Plaintiff exceeds $125.00 per hour, requiring a finding 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
has presented an adequate basis for seeking an hourly rate in excess of $125.00; further, the rate
is consistent with recent hourly rates awarded for attorney fees in similar cases predicated increases
in the cost of living as reflected by the Consumer Price Index. More importantly, the Commissioner
does not oppose Plaintiff’s hourly rate. The Court finds the requested rate reasonable.1
Attorney’s fees under the EAJA are properly payable to the party-litigant, not directly to the
attorney. See Astrue v. Ratliff, 560 U.S. 586 (2010); see also Murkeldove, 635 F.3d at 788 n.2.
In part, that is so to make fee payments subject to a Government offset to satisfy any pre-existing

1

Petitioner is requesting an award of attorney fees under EAJA at the rate of $178.27 per hour
for services rendered to Plaintiff in 2012 and $181.43 per hour for services rendered to Plaintiff in
2013 and 2014. For 34 hours of attorney work, the payment representing attorney hours is
$6160.73.
3

.

debt that the litigant may owe the United States. Ratliff, 130 S. Ct. at 2524. Therefore, Plaintiff, not
his attorney, should be paid the aggregate sum of $ 6,510.73 in fees and expenses in connection
with this case. Plaintiff’s payment of fees owed his attorney is a matter of the retainer agreement
between them. The payment will be made via his attorney at his attorney’s office.
After due consideration, in light of the foregoing, it is hereby
ORDERED that Plaintiff’s Unopposed Motion for Award of Attorney Fees pursuant to the
Equal Access to Justice Act (docket entry # 21) is GRANTED. The Commissioner is hereby
ORDERED to pay Plaintiff, via his attorney of record, for fees and expenses incurred totaling
$6,510.73 pursuant to3rd day of January, 2012.
SIGNED this the EAJA, 28 U.S.C. § 2412(d).
SIGNED this 12th day of January, 2015.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

4