United States District Court, W.D. Arkansas, Fort Smith Division
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
now before this Court is Plaintiff's Application for
Attorney Fees Under the Equal Access to Justice Act
(“EAJA”). ECF No. 19. With this Motion, Plaintiff
requests an EAJA award of $5, 693.10. Id. On
February 28, 2018, Defendant responded to this Motion and
objects (1) to work performed on August 22, 2016 as not all
having been done before the District Court and (2) because
the fees are not appropriate because the government's
position was substantially justified. ECF No. 22.
Earl Mashburn (“Plaintiff”) appealed to this
Court from the Secretary of the Social Security
Administration's (“SSA”) denial of his
request for disability benefits. ECF No. 1. On November16,
2017, Plaintiff's case was remanded pursuant to sentence
four of 42 U.S.C. § 405(g). ECF No. 18.
February 14, 2018, Plaintiff filed the present Motion
requesting an award of attorney's fees under the EAJA.
ECF No 19. With this Motion, Plaintiff requests an award of
attorney's fees and costs of $5, 693.10. Id.
This amount represents 5.65 attorney hours at an hourly rate
of $188.00 for work performed in 2016, 15.25 attorney hours
at an hourly rate of $192.00 for work performed in 2017, 1.15
attorney hours at an hourly rate of $196.00 for work
performed in 2018, and 19.70 paralegal hours at an hourly
rate of $75.00. Id. Defendant responded to this
Motion on February 28, 2018 and objects to work performed on
August 22, 2016 as not all having been done before the
District Court and (2) the fees are not appropriate because
the government's position was substantially justified.
ECF No. 22.
to the EAJA, 28 U.S.C. § 2412(d)(1)(A), a court must
award attorney's fees to a prevailing social security
claimant unless the Secretary's position in denying
benefits was substantially justified. The Secretary has the
burden of proving that the denial of benefits was
substantially justified. See Jackson v. Bowen, 807
F.2d 127, 128 (8th Cir.1986) (“The Secretary bears the
burden of proving that its position in the administrative and
judicial proceedings below was substantially
justified”). An EAJA application also must be made
within thirty days of a final judgment in an action,
See 28 U.S.C. § 2412(d)(1)(B), or within thirty
days after the sixty day time for appeal has expired. See
Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
award of attorney's fees under the EAJA is appropriate
even though, at the conclusion of the case, the
plaintiff's attorney may be authorized to charge and to
collect a fee pursuant to 42 U.S.C. § 406(b)(1).
Recovery of attorney's fees under both the EAJA and 42
U.S.C. § 406(b)(1) was specifically allowed when
Congress amended the EAJA in 1985. See Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002) (citing Pub. L. No.
99-80, 99 Stat. 186 (1985)). The United States Supreme Court
stated that Congress harmonized an award of attorney's
fees under the EAJA and under 42 U.S.C. § 406(b)(1) as
Fee awards may be made under both prescriptions [EAJA and 42
U.S.C. § 406(b)(1)], but the claimant's attorney
must “refun[d] to the claimant the amount of the
smaller fee.”. . .“Thus, an EAJA award offsets an
award under Section 406(b), so that the [amount of total
past-due benefits the claimant actually receives] will be
increased by the . . . EAJA award up to the point the
claimant receives 100 percent of the past-due
Id. Furthermore, awarding fees under both acts
facilitates the purposes of the EAJA, which is to shift to
the United States the prevailing party's litigation
expenses incurred while contesting unreasonable government
action. See id.; Cornella v. Schweiker, 728
F.2d 978, 986 (8th Cir. 1984).
statutory ceiling for an EAJA fee award is $125.00 per hour.
See 28 U.S.C. § 2412(d)(2)(A). A court is only
authorized to exceed this statutory rate if “the court
determines that an increase in the cost of living or a
special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher
fee.” Id. A court may determine that there has
been an increase in the cost of living, and may thereby
increase the attorney's rate per hour, based upon the
United States Department of Labor's Consumer Price Index
(“CPI”). See Johnson v. Sullivan, 919
F.2d 503, 504 (8th Cir. 1990).
present action, Plaintiff's case was remanded to the SSA.
ECF No. 18. Defendant does not contest Plaintiff's claim
that he is the prevailing party and does not object to the
hourly rate he requested. ECF No. 22.
requests a total award of 5, 693.10 under the EAJA. ECF No.
19. Plaintiff requests these attorney fees at a rate of
$188.00 per hour for work performed in 2016 and $192.00 per
hour for work performed in 2017, and $196.00 for work
performed in 2018. Id. An enhanced hourly rate is
authorized by the EAJA as long as a Consumer Price Index
(“CPI”) justifies such the enhanced hourly rate.
See 28 U.S.C. § 2412(d)(2)(A). See also
Johnson, 919 F.2d at 504. Further, Defendant does not
object to these hourly rates. ECF No. 22. Based upon the
CPI-South Index, the hourly rate of $188.00 is authorized for