United States District Court, W.D. Arkansas, Texarkana 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. 18. With this Motion, Plaintiff
requests an EAJA award of $3, 354.13. Id. On April
2, 2018, Defendant responded to this Motion and objects to
the hourly rate requested and to the numbers of hours claimed
as excessive. ECF No. 19. 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. 5. Pursuant to this
authority, the Court issues this Order.
Tucker (“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 January 8, 2018, this Court reversed
and remanded Plaintiff's case pursuant to sentence four
of 42 U.S.C. § 405(g). ECF Nos. 16, 17.
March 30, 2018, Plaintiff filed the present Motion requesting
an award of attorney's fees under the EAJA. ECF No. 18.
With this Motion, Plaintiff requests an award of
attorney's fees of $3, 354.13representing 15.90 hours of
attorney time in 2017 at an hourly rate of $192.70 and 1.50
hours of attorney time in 2018 at an hourly rate of $193.47.
Id. On April 2, 2018, Defendant responded to this
Motion and objects to the hourly rate requested and to the
number of hours claimed by counsel.
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
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
benefits.” 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). The
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. 17. Defendant 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. 16. 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 $3, 354.13 under the EAJA. ECF No.
18. Plaintiff requests these attorney fees at a rate of
$192.70 per hour for work performed in 2017 and $193.47 per
hour for work performed in 2018. Id. Defendant
objects to the hourly rate of $192.37 for work performed in
2017. 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. 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.
Based upon the CPI-South Index, the hourly rate of $192.00 is
authorized for 2017. Accordingly, the Court awards this
hourly rate for work performed in 2017 and $193.47 per hour
for work performed in 2018.
I have reviewed counsel's itemization of time appended to
Plaintiff's application. ECF No. 18. Defendant has
objected to 0.50 hours of work performed as excessive because
it involved Plaintiff's own request for extensions to
file a brief. ECF No. 19. Based on the review of
counsel's itemization, this Court does find counsel's
time to be excessive and not compensable, therefore, this
Court finds Plaintiff is entitled to an attorney's fee
award under EAJA in the amount of $3, 247.01 representing
15.40 attorney hours at an hourly rate of $192.00 for work
performed in 2017 and 1.50 attorney hours at an hourly rate
of $193.47 for work performed in 2018.
claims the fees awarded should be paid directly to Plaintiff
pursuant to Astrue v. Ratliff,560 U.S. 586, 130
S.Ct. 2521 (2010). ECF No. 19. Ratliff requires that
attorney's fees be awarded to the “prevailing
party” or the litigant. See id, 130 S.Ct. at
2528. Thus, these fees must be awarded to Plaintiff, not to
Plaintiff's attorney. However, if Plaintiff has executed
a valid assignment to Plaintiff's attorney of all rights
in an attorney's fee award and ...