Jeffery v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER - re : 16 . Signed by Magistrate Judge Roy S. Payne on 4/23/2014. (ch, )

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

BRENDA G. JEFFERY

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v.

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COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

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CIVIL ACTION NO. 2:13-CV-263

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MEMORANDUM OPINION AND ORDER ON
PLAINTIFF’S PETITION AND BRIEF FOR
AWARD OF ATTORNEY’S FEES AND COURT
COSTS UNDER THE
EQUAL ACCESS TO JUSTICE ACT
On April 5, 2013, Plaintiff initiated this lawsuit by filing a complaint seeking judicial review
of the Commissioner’s decision denying her application for Social Security benefits. The matter was
transferred to the undersigned for all purposes pursuant to 28 U.S.C. § 636(c).
Background
On November 15, 2013, this Court issued a Report and Recommendation stating that this
Social Security action should be reversed and remanded. A Final Judgment was issued on December
2, 2013, thereby 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 her Unopposed Motion for Award of Attorney
Fees pursuant to 28 U.S.C. § 2412, the Equal Access to Justice Act (“EAJA”), docket entry #16.
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Based on the supporting arguments and the Court’s remand, Plaintiff asserts that she is the
prevailing party for purposes of the EAJA and seeks a total of $2683.24 for 14.80 hours of attorney
work at $181.30 per hour. She also seeks expenses totaling $350.00 The Commissioner does not
oppose the requested time or hourly rates. See Commissioner’s Response (Docket # 17).
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.).

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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 special circumstances that would render an award unjust. Plaintiff’s motion was on file and
ripe for ruling within 30 days of the judgment becoming final, together with an itemized account.
It is undisputed that Plaintiff actually incurred these fees. 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 a sufficient basis for seeking an hourly rate of $181.35. 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.
Attorney’s 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, 2526, 177 L. Ed. 2d 91 (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 debt that the litigant may owe the United States.
Ratliff, 130 S. Ct. at 2524. Therefore, Plaintiff, not her attorney, should be paid the aggregate sum
of $3,033.24 in fees and expenses in connection with this case. Plaintiff’s payment of fees owed

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her attorney is a matter of the retainer agreement between them. The payment will be made via her
attorney.
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 #16) is GRANTED. The Commissioner is hereby
ORDERED to pay Plaintiff, via her attorney of record, fees and expenses incurred totaling
$3,033.24 pursuant to the EAJA, 28 U.S.C. § 2412(d).
SIGNED this 3rd day of January, 2012.
SIGNED this 23rd day of April, 2014.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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