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Bromley v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

April 2, 2015

HARVEY J. BROMLEY, Plaintiff,
v.
CAROLYN W. COLVIN[1], Commissioner Social Security Administration, Defendant.

MEMORANDUM OPINION AND ORDER

JAMES R. MARSCHEWSKI, Magistrate Judge.

I. Procedural Background:

Pending now before this Court is Plaintiff's Motion for Attorney Fees Under the Equal Access to Justice Act ("EAJA"). ECF No. 13. The parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, and pursuant to said authority, the Court issues this Order. ECF No. 6.

Plaintiff now moves for an award of $7, 513.30 in attorney's fees under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter "EAJA"), for 3.50 attorney hours for work performed in 2013 at a rate of $183.00 per hour, 34.80 attorney hours for work performed in 2014 at an hourly rate of $186.00, and $400.00 for reimbursement of the filing fee. ECF No. 13-1. The Defendant has filed a response to Plaintiff's motion, voicing no objections. ECF No. 15.

It is the opinion of the undersigned that the Plaintiff is entitled to a fee award in this case, as he is the prevailing party, the government's decision to deny benefits was not "substantially justified", the hourly rate requested for attorney hours does not exceed the CPI for either year in question, and the time asserted to have been spent in the representation of the Plaintiff before the district court is reasonable. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986) (burden is on the Commissioner to show substantial justification for the government's denial of benefits); Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990) (the hourly rate may be increased when there is "uncontested proof of an increase in the cost of living sufficient to justify hourly attorney's fees of more than $75.00 an hour); and Allen v. Heckler, 588 F.Supp. 1247 (W.D.N.Y. 1984) (in determining reasonableness, court looks at time and labor required; the difficulty of questions involved; the skill required to handle the problems presented; the attorney's experience, ability, and reputation; the benefits resulting to the client from the services; the customary fee for similar services; the contingency or certainty of compensation; the results obtained; and, the amount involved). Accordingly, Plaintiff is entitled to an attorney's fee award under EAJA in the amount of $7, 513.30.

Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA fee award should be made payable to Plaintiff. However, as a matter of practice, an EAJA fee made payable to Plaintiff may properly be mailed to Plaintiff's counsel.

The parties should be reminded that the award herein under the EAJA will be taken into account at such time as a reasonable fee is determined pursuant to 42 U.S.C. § 406, in order to prevent double recovery by counsel for the Plaintiff.

IV. Conclusion:

Based upon the foregoing, I award Plaintiff $7, 513.30 pursuant to the EAJA, 28 U.S.C. § 2412.


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