McClung v. Commissioner, Social Security Administration
MEMORANDUM OPINION AND ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT. Signed by Magistrate Judge Roy S. Payne on 5/11/2015. (ch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
COMMISSIONER, SOCIAL SECURITY
CIVIL ACTION NO. 2:13-cv-00143
MEMORANDUM OPINION AND ORDER ON
PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT
On February 19, 2013, 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.
On September 23, 2014, the District Court issued a Memorandum Opinion stating that this
Social Security action should be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g) of the Social Security Act. Plaintiff now appears before the Court with a Motion for Attorney
Fees Pursuant to 28 U.S.C. § 2412, the Equal Access to Justice Act (“EAJA”)(docket entry # 22).
Based 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 payment for 24.4 hours of attorney work,
2.4 hours of paralegal work, and expenses totaling $12.22, for an aggregate attorney fee of
$4,783.44. The Commissioner has responded to Plaintiff’s Motion, and opposes amount of attorney
fees Plaintiff requests.
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
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).
No Special Circumstances Render an Award “Unjust”
The Commissioner has not suggested, much less demonstrated, 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. See Motion for Attorney Fees
(attachment)(docket entry #22); Murkeldove, 635 F.3d at 791.
The Hourly Fee is Warranted
The EAJA statutory hourly attorney fee rate is $125.00 per hour, as set in 1996. 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). Counsel argues that the
Court should adjust this rate based on a number of considerations. These considerations include
changes in the cost of living and the fact that few attorneys in the Tyler Division of the Eastern
District of Texas regularly represent clients in Social Security appeals. These arguments justify an
increased rate based on cost of living in order to ensure an adequate source of representation. Baker
v. Bowen, 839 F.2d 1075, 1080 (5th Cir. 1988).
Counsel calculates the cost of living changes based on the Consumer Price Index for the
month in which the services were rendered, rather than using an average for the year. Counsel
submitted an itemized request for attorneys fees documenting .4 hours in February 2013 (rate of
$185.26), .1 hours in March 2013 (rate of $185.88), .6 hours in July 2013 (rate of $186.64), 15.7
hours in August 2013 (rate of $186.88), 1.6 hours in September 2013 (rate of $186.90), 1.7 hours
in October 2013(rate of $186.54), 1.6 hours in September 2013 (rate of $186.90), 1.7 hours in
October 2013 (rate of $186.54), 1.1 hours in September 2014 (rate of $190.09), 1.3 hours in
December 2014 (rate of $188.52), and 1.9 hours in January 2015 (rate of $188.52). Counsel also
documents 2.4 hours of paralegal work, billed at $85.00 per hour, and expenses totaling $12.22.
These amounts represent a total attorney’s fees request of $4,783.44.
The Commissioner objects to this calculation of the hourly fees used by counsel to determine
the attorney fee award. The Commissioner argues that the CPI index for the year should be utilized,
rather than calculating it month by month.
This Court addressed the issue of the calculation of the hourly fee in Chargois v. Barnhart,
454 F.Supp.2d 631, 635-36 (E.D.Tex. 2006). This Court concluded that monthly adjustments are
permissible because (1) there was no authority directly rejecting this means of calculation; (2) neither
the Equal Access to Justice Act nor its legislative history explicitly or implicitly say that cost of
living adjustments must or should be based only on annual data; (3) the proposed method, although
more complicated, does no violence to Congressional intent to provide an allowance for cost of
living fees under the EAJA, (4) the method of calculation is consistent with circuit precedent
requiring that cost of living adjustments under the EAJA be made to reflect the appropriate rate
“when services were rendered;” (5) the method is more mathematically precise than calculations
based on annual index figures, and (6) the method is fair and even-handed because monthly
calculations, if consistently applied, are just as likely to produce a lower fee as a higher fee
depending on whether the index level for a given month falls below or above the annual index level.
The Court concluded that in the exercise of its discretion, it could accept or reject the
proposed method of calculating the cost of living adjustment on a monthly rather than an annual
basis. See also Allsbury v. Barnhart, 473 F.Supp. 2d. 732, 735 (E.D.Tex. 2007). The Court accepts
Plaintiff’s method of calculating the cost of living adjustment on a monthly basis.
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. See, e.g., Brown
v. Commissioner, Soc. Sec. Admin., 6:10cv637. The Court finds the requested rate reasonable.
Compensation for Motion Work
The Commissioner also objects to Counsel’s request for compensation to prepare a motion
for extension of time to file the initial and reply briefs, respectively. See Commissioner’s Response
(docket entry #23) at 2.
The Commissioner argues that these motions did not advance the claimant’s case and that
arguably, an award of attorney’s fees would “actually reward an attorney for not meeting the court’s
original deadlines,” citing Prak v. Chater, 908 F.Supp. 555, 557 (N.D.Ill. 1995). The Commissioner
suggests that the time spent preparing the extensions should be excised completely from the fee
award. Movant states that time spent preparing motions for extensions of time is compensable
In Costa v. Colvin, 2013 WL 5944190 (D.Ore., November 3, 2013)(No. 3:10cv786), the
district court rejected the Commissioner’s challenge to the plaintiff’s request for fees for time spent
on two motions for extension of time, one motion to the Ninth Circuit for submission on the briefs,
and for a memorandum regarding case strategy in communication with post-remand counsel. The
district court observed that “motions for extension of time are common in social security cases, at
least at the district court level,” and that all of these expenses claimed by counsel were reasonable.
In Ittel v. Colvin, 2014 WL 4905638 (N.D.Ind. Sep 30, 2014) (No. 2:12-CV-096), the Court noted
that extensions of time are “commonplace in this type of work” and approved the request for fees.
The Court is aware that counsel is one of a relatively small number of attorneys in the Eastern
District of Texas whose practice largely centers around Social Security appeals, and that she
maintains a high caseload. Under the circumstances set forth, the Court has concluded that counsel’s
request for fees for the motions to extend time is reasonable.
In the interest of ensuring adequate representation for those who need it and to minimize the
cost of that representation to taxpayers, the Court concludes that Plaintiff’s Motion for Attorney
Fees (docket # 22) should be granted in part. The Court finds that counsel should be paid for 24.4
attorney hours, 2.4 hours for paralegal work (85.00 an hour for a total of $204.00) , and $12.22 in
The Court notes, as does the Commissioner, that attorney fees under the EAJA are properly
payable to the party-litigant, not directly to the attorney. See Astrue v. Ratliff, - - - U.S. - - -, 130 S.
Ct. 2521, 2524, - - - L. Ed. 2d - - - (2010). In part, that is so to make fee payments subject to a
Government offset to satisfy a pre-existing debt that the litigant owes the United States. Id.
Therefore, Plaintiff, not Plaintiff’s counsel, should be paid for the attorney work in connection with
this case. Plaintiff’s payment of fees owed his attorney are a matter of the retainer agreement
After due consideration, in light of the foregoing, it is hereby
ORDERED that Plaintiff’s Application for Attorney Fees Under the Equal Access to Justice
Act (docket # 22) is GRANTED. The Commissioner is hereby ORDERED to pay Plaintiff for fees
incurred totaling $4,783.44 pursuant to the EAJA, 28 U.S.C. § 2412(d).
SIGNED this 3rd day of January, 2012.
SIGNED this 11th day of May, 2015.
ROY S. PAYNE
6 UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?