United States District Court, W.D. Arkansas, Hot Springs Division
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
now before this Court is Plaintiff's Application for
Attorney Fees Under the Equal Access to Justice Act
(“EAJA”). ECF No. 23. With this Motion, Plaintiff
requests an EAJA award of $5, 019.60. Id. On March
8, 2018, Defendant responded to this Motion and objects to
the hours claimed as excessive. ECF No. 25. The parties have
consented to the jurisdiction of a magistrate judge to
conduct any and all proceedings in this case, including
conducting the trial, ordering the entry of a final judgment,
and conducting all post-judgment proceedings. ECF No. 11.
Pursuant to this authority, the Court issues this Order.
James (“Plaintiff”) appealed to this Court from
the Secretary of the Social Security Administration's
(“SSA”) denial of her request for disability
benefits. ECF No. 1. On December 7, 2017, Plaintiff's
case was remanded pursuant to sentence four of 42 U.S.C.
§ 405(g). ECF No. 22.
March 7, 2018, Plaintiff filed the present Motion requesting
an award of attorney's fees under the EAJA. ECF No 23.
With this Motion, Plaintiff requests an award of
attorney's fees of $5, 019.60. Id. This amount
represents 26.70 attorney hours at an hourly rate of $188.00
for work performed. Id. Defendant responded to this
Motion on March 8, 2018. Defendant objects to the number of
hours claimed by counsel. ECF No. 25.
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. 22. Defendant does not contest Plaintiff's claim
that she is the prevailing party, does not oppose her
application for fees under the EAJA, and does not object to
the hourly rate she requested. ECF No. 25. 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.
requests a total award of $5, 019.60 under the EAJA. ECF No.
23. Plaintiff requests these attorney fees at a rate of
$188.00 per hour for work performed. 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 General Order 39. See also
28 U.S.C. § 2412(d)(2)(A), Johnson, 919 F.2d at
504. Based upon the CPI-South Index, the hourly ...