Benton v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER granting in part 19 Motion for Attorney Fees, filed by Clay Benton, Jr. Plaintiff's motion is granted to the extent that plaintiff is awarded the sum of $5,646.19 in attorney's fees and reimbursement of the $350.00 filing fee from the Judgment Fund.(Ordered by Chief Judge Sidney A Fitzwater on 3/5/2013) (Chief Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLAY BENTON, JR., o/b/o
CLAY ALLEN BENTON,
Plaintiff,
VS.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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§ Civil Action No. 3:12-CV-0874-D
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MEMORANDUM OPINION
AND ORDER
Following the court’s judgment vacating and remanding the Commissioner’s decision
in this social security appeal, plaintiff’s attorney applies for an award of attorney’s fees under
the Equal Access to Justice Act. The Commissioner opposes the fee application in only one
respect: the amount of the hourly rate.1 In the end, this is a dispute over $344.07, so the court
assumes the principle of the decision is important to the Commissioner in many more cases
than this one. For the reasons that follow, the court agrees with the Commissioner and
awards plaintiff the sum of $5,646.19 in attorney’s fees and reimbursement of the $350.00
filing fee from the Judgment Fund.2

1

The Commissioner also argues that the fee is payable to the plaintiff, not to his
attorney, although the payment may be mailed to plaintiff’s attorney. Plaintiff does not
challenge this assertion by way of reply brief. See infra note 3.
2

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]

Plaintiff has applied for a fee award of $5,990.26, based on an hourly rate of $182.63,
for 32.80 hours of work performed in 2012. He also requests reimbursement of the $350.00
filing fee from the Judgment Fund. The Commissioner acknowledges that he has previously
agreed to this hourly rate and that this court has approved this rate. But he argues that, under
Fifth Circuit authority, this court should adjust the statutory base amount of $125.00 per hour
by using the Consumer Price Index (“CPI”) that most accurately applies to a location. He
maintains that, using the CPI for the Dallas-Fort Worth area, the correct hourly rate for
2012—and therefore for this case—is $172.14. He contends that plaintiff’s attorney is
entitled to $5,646.19 for work performed in 2012 (32.80 hours x $172.14), and
reimbursement of the filing fee. See D. Resp. 3 (“In summary, [the Commissioner] opposes
the hourly rate based on the incorrect CPI, but agrees to the hours Plaintiff states and
Plaintiff’s request for $350.00 in filing fees payable from the Judgment Fund.”).
Plaintiff has not replied to the Commissioner’s response and therefore has not
demonstrated that the Commissioner’s evidence of the CPI is in any respect inaccurate.3 The
court finds that, applying the CPI for Dallas-Fort Worth, the properly hourly rate for 2012
is $172.14. The court therefore awards plaintiff attorney’s fees based on this hourly rate.

issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.”
It has been written, however, primarily for the parties, to decide issues presented in this case,
and not for publication in an official reporter, and should be understood accordingly.
3

The Commissioner filed his response to the application on February 13, 2013. The
time for plaintiff to file a reply brief has expired.
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Plaintiff’s February 6, 2013 motion for fees under the Equal Access to Justice Act is
granted to the extent that plaintiff is awarded the sum of $5,646.19 in attorney’s fees and
reimbursement of the $350.00 filing fee from the Judgment Fund.
SO ORDERED.
March 5, 2013.

_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE

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