United States District Court, W.D. Arkansas, Fort Smith Division
DANA L. ELKINS PLAINTIFF
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT
MEMORANDUM OPINION AND ORDER
MARK E. FORD, UNITED STATES MAGISTRATE JUDGE
now before this Court is Plaintiff's Motion for Attorney
Fees Under the Equal Access to Justice Act
(“EAJA”). ECF Nos. 18, 19. The matter is before
the undersigned by consent of the parties. ECF No. 8.
December 6, 2016, Plaintiff filed a motion for attorney's
fees and costs under 28 U.S.C. § 2412, the Equal Access
to Justice Act (hereinafter “EAJA”), requesting
$5, 348.15, representing a total of 19.25 attorney hours for
work performed in 2015 at an hourly rate of $187.00 per hour
and 9.30 attorney hours in 2016 at an hourly rate of $188.00.
ECF No. 18-1. On December 8, 2016, the Commissioner filed a
response voicing no objection to the hourly rate sought, but
objecting to the number of hours Plaintiff's counsel is
requesting. ECF No. 20. The Plaintiff filed a reply on
January 8, 2017, contending the fee requested is reasonable
and compensable under the EAJA. ECF No. 21.
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
EAJA 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 v. Eckerhart, 461 U.S. 424, 433 (1983).
EAJA is not designed to reimburse without limit. Pierce
v. Underwood, 487 U.S. 552, 573 (1988). In 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
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. Hensley v. Eckerhart, 461 U.S. 424,
430 (1983). Further, 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.”).
general rule, 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 attorney's justifies a higher
fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase
the hourly rate is not automatic, though, and remains at the
discretion of the district court. McNulty v.
Sullivan, 886 F.2d 1074 (8th Cir. 1989). In Sanders
v. Astrue, 2012 WL 19422 (W.D. Ark. Jan 3, 2012), this
Court decided to follow the approach set forth in Knudsen
v. Barnhart, 360 F.Supp.2d 963, 969-974 (N.D. Iowa
2004), wherein the Court found that “a reasonable
balance between accuracy and ease of computation would be to
require attorneys to adjust fees using the CPI available and
applicable to the year when services were performed.”
Id. at 974. In this case, we find that an increase
in the cost of living justifies a higher fee.
present action, Plaintiff's case was remanded by this
Court pursuant to sentence four of 42 U.S.C. § 405(g).
ECF No. 16. The Commissioner does not contest Plaintiff's
claim that she is the prevailing party and does not oppose
her application for fees under the EAJA. ECF No. 20. The
Court construes this lack of opposition to this application
as an admission that the government's decision to deny
benefits was not “substantially justified, ” and
that Plaintiff is the prevailing party and entitled to
receive an award under the EAJA.
Commissioner contends that the time requested for instructing
the paralegal with regard to filing a continuance, drafting
the motion for continuance, and reviewing the text only order
granting the motion to continue and instructing the paralegal
is excessive and should be reduced. We agree.
Court finds that the Plaintiff's counsel is entitled to
no more than nominal time for preparing the motion for
continuance and reviewing the order granting same.