United States District Court, W.D. Arkansas, Harrison Division
ERIN L. SETSER, UNITED STATES MAGISTRATE JUDGE.
Donna Marie Teskey, appealed the Commissioner's denial of
benefits to this Court. On June 17, 2016, judgment was
entered remanding Plaintiff's case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc.
13). Plaintiff now moves for an award of $4, 944 in
attorney's fees and expenses under 28 U.S.C. § 2412,
the Equal Access to Justice Act (hereinafter
“EAJA”), requesting compensation for attorney
hours of work before the Court at an hourly rate of $180.00
for work performed in 2015 and 2016, and $350.00 for filing
fees. (Docs. 14-17). Defendant filed a response to
Plaintiff's application, with no objections to the hours
requested, but stating that the filing fee should be allowed
as costs rather than expenses. (Doc. 18).
to 28 U.S.C. § 2412(d)(1)(A), the Court must award
attorney's fees to a prevailing social security claimant
unless the Commissioner's position in denying benefits
was substantially justified. The burden is on the
Commissioner to show substantial justification for the
government's denial of benefits. Jackson v.
Bowen, 807 F.2d 127, 128 (8th Cir. 1986). Under
Shalala v. Schaefer, 509 U.S. 292, 302 (1993), a
social security claimant who obtains a sentence-four judgment
reversing the Commissioner's denial of benefits and
remanding the case for further proceedings is a prevailing
party. After reviewing the file, the Court finds that
Plaintiff is a prevailing party in this matter.
determining a reasonable attorney's fee, the Court will
in each case consider the following factors: time and labor
required; the novelty and difficulty of questions involved;
the skill required to handle the problems presented; the
preclusion of employment by the attorney due to acceptance of
the case; the customary fee; whether the fee is fixed or
contingent; time limitations imposed by the client or the
circumstances; the amount involved and the results obtained;
the attorney's experience, reputation and ability; the
“undesirability” of the case; the nature and
length of the professional relationship with the client; and
awards in similar cases. Hensley v. Eckerhart, 461
U.S. 424, 430 (1983).
the EAJA is not designed to reimburse without limit.
Pierce v. Underwood, 487 U.S. 552, 573 (1988). The
Court can determine the reasonableness and accuracy of a fee
request, even in the absence of an objection by the
Commissioner. Clements v. Astrue, 2009 WL 4508480
(W.D. Ark. Dec. 1, 2009); see also Decker v.
Sullivan, 976 F.2d 456, 459 (8th Cir. 1992)
(“Although the issue was not raised on appeal, fairness
to the parties requires an accurately calculated
attorney's fee award”).
EAJA further requires an attorney seeking fees to submit
“an itemized statement...stating the actual time
expended and the rate at which fees and other expenses were
computed.” 28 U.S.C. § 2412(d)(1)(B). Attorneys
seeking fees under federal fee-shifting statutes such as the
EAJA are required to present fee applications with
“contemporaneous time records of hours worked and rates
claimed, plus a detailed description of the subject matter of
the work.” Id. Where documentation is
inadequate, the Court may reduce the award accordingly.
Hensley, 461 U.S. at 433 (1983).
attorney requests an award under the EAJA for 24.80 hours of
attorney work performed in 2015, and 2016, at an hourly rate
of $180.00. The party seeking attorney fees bears the burden
of proving that the claimed fees are reasonable.
Hensley, 461 U.S. at 437. Attorney fees may not be
awarded in excess of $125.00 per hour - the maximum statutory
rate under § 2412(d)(2)(A) - unless the court finds that
an increase in the cost of living or a special factor such as
the limited availability of qualified attorneys justifies a
higher fee. 28 U.S.C. § 2412(d)(2)(A).
to General Order 39,  which references the Consumer Price Index
(CPI) - South, the Court finds that an enhanced hourly rate
based on a cost of living increase is appropriate, and
counsel will be compensated at $180.00 per hour in 2015 and
Court will next address the number of hours requested by
Plaintiff's counsel. Plaintiff's counsel has included
several entries that for the reasons given below, should not
be considered attorney work:
6/22/15 Read and review Electronic Notice confirming
Complaint and Summons filing .10
6/22/15 Read and review Electronic Notice confirming Civil
Cover Sheet filing .10
6/22/15 Read and review Electronic Notice confirming Filing
of Plaintiff's Consent to Magistrate .10
6/22/15 Read and review Electronic Notice confirming 3
Summons Issued .10
/7/15 Letter to Carolyn Colvin Commissioner of Social
security with ...