Benik v. Astrue
MEMORANDUM DECISION granting in part and denying in part 26 Motion for Attorney Fees. Signed by Magistrate Judge Paul M. Warner on 12/01/2011. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
RICHARD J. BENIK,
Case No. 1:10-cv-0004-PMW
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Magistrate Judge Paul M. Warner
All parties in this case have consented to having United States Magistrate Judge Paul M.
Warner conduct all proceedings in the case, including entry of final judgment, with appeal to the
United States Court of Appeals for the Tenth Circuit.1 See 28 U.S.C. § 636(c); Fed. R. Civ.
P. 73. Before the court is Richard J. Benik’s (“Plaintiff”) motion for attorney fees pursuant to the
Equal Access to Justice Act (“EAJA”).2 The court has carefully reviewed the written memoranda
submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court has concluded that oral argument is not
necessary and will determine the motion on the basis of the written memoranda. See DUCivR
See docket no. 23.
See docket no. 26.
In 2005, Plaintiff applied for Disability Insurance Benefits under Title II of the Social
Security Act, see 42 U.S.C. §§ 401-434, and Supplemental Security Income under Title XVI of
the Social Security Act, see id. §§ 1381-1383f, alleging a disability onset date of February 15,
2003. On May 30, 2008, an administrative law judge (“ALJ”) issued a written decision denying
Plaintiff’s claims. In November 2009, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision Michael J. Astrue’s (“Commissioner”) final decision for purposes of
judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.
Plaintiff filed this case on January 28, 2010, seeking judicial review of the
Commissioner’s final decision. On July 18, 2011, this court issued a memorandum decision and
order (“Order”) reversing the Commissioner’s decision and remanding the case for further
On October 5, 2011, Plaintiff filed the motion for attorney fees currently before the court.
Along with the motion, Plaintiff filed a copy of the attorney fee agreement Plaintiff and his
counsel both signed. In that agreement, Plaintiff assigned his right to any EAJA attorney fees to
his counsel. The Commissioner opposes Plaintiff’s motion.
The EAJA provides for an award of attorney fees and other expenses to a prevailing
party, as follows:
See docket no. 24.
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any
court having jurisdiction of that action, 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). The EAJA further provides that
[a] party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the party
is a prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized
statement from any attorney or expert witness representing or
appearing in behalf of the party stating the actual time expended
and the rate at which fees and other expenses were computed. The
party shall also allege that the position of the United States was not
substantially justified. Whether or not the position of the United
States was substantially justified shall be determined on the basis
of the record (including the record with respect to the action or
failure to act by the agency upon which the civil action is based)
which is made in the civil action for which fees and other expenses
Id. § 2412(d)(1)(B).
[T]he Commissioner ha[s] the burden of proof to show that
[his] position was substantially justified. The test for substantial
justification in this circuit is one of reasonableness in law and fact.
Thus, the [Commissioner’s] position must be justified to a degree
that could satisfy a reasonable person. The [Commissioner’s]
position can be justified even though it is not correct.
Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quotations and citations omitted).
Plaintiff argues that he is entitled to an award of $5419.70 for attorney fees pursuant to
the EAJA and has included the required itemized statement of fees. Plaintiff asserts that he is the
prevailing party and that the position of the Commissioner in this case was not substantially
justified. Plaintiff further contends that the fees sought are reasonable. In his reply
memorandum, Plaintiff requests additional attorney fees of $665.23 incurred in preparing that
reply memorandum and has included the required itemized statement of fees. See, e.g.,
Rose-Velasquez v. Astrue, No. 2:06-cv-297-TS, 2008 U.S. Dist. LEXIS 31329, at *6 (D. Utah
Apr. 16, 2008) (unpublished) (determining that an award of fees incurred as a result of the
dispute over the amount of proper fees was appropriate). Finally, pursuant to his assignment
agreement with his counsel, Plaintiff asserts that the total attorney fee award of $6084.93 should
be paid directly to his counsel.
In response, the Commissioner argues that his position in this case was substantially
justified. The Commissioner also argues that if attorney fees are to be awarded in this case, they
should be awarded directly to Plaintiff, not to Plaintiff’s counsel.
The court has determined that the Commissioner’s first argument is without merit. While
it is true that the Commissioner’s position can be justified even if it is not correct, see Hackett,
475 F.3d at 1172, the court has determined that principle does not apply here. Instead, the court
concludes that the Commissioner’s position was not substantially justified. In the Order, the
court rejected the Commissioner’s harmless error argument concerning the hypothetical provided
to the vocational expert. Given that the Commissioner had no substantive argument on that
issue, and instead argued only harmless error, the court cannot agree with the Commissioner’s
assertion that his position was substantially justified.
As to the Commissioner’s second argument, the court concludes that any award of EAJA
fees must be paid to directly to Plaintiff, rather than to Plaintiff’s counsel. This conclusion is
consistent with case law from the Tenth Circuit. See Brown v. Astrue, 271 Fed. App’x 741, 743
(10th Cir. 2008) (unpublished) (“The district court correctly held that [the plaintiff’s] assignment
of his right in the fees award to counsel does not overcome the clear EAJA mandate that the
award is to him as the prevailing party, and the fees belong to him. Thus, the district court
correctly declined to award the fees directly to counsel.”); Manning v. Astrue, 510 F.3d 1246,
1249-55 (10th Cir. 2007) (holding based on statutory language, legislative history, and case law,
that an attorney fee award under the EAJA is to the prevailing party and not to the prevailing
Finally, although not challenged by the Commissioner, the court concludes that the
attorney fees sought by Plaintiff are reasonable.
Based on the foregoing, Plaintiff’s motion for attorney fees pursuant to the EAJA4 is
GRANTED IN PART and DENIED IN PART. Within thirty (30) days of the date of this
See docket no. 26.
order, the Commissioner shall Plaintiff an EAJA attorney fee award of $6084.93, but that award
shall be payable directly to Plaintiff, not to his counsel.
IT IS SO ORDERED.
DATED this 1st day of December, 2011.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
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