United States District Court, W.D. Arkansas, Fort Smith Division
REBECCA WATSON o/b/o N.O.K.F. PLAINTIFF
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT
ERIN L. WIEDEMANN, UNITED STATES MAGISTRATE JUDGE
Rebecca Watson, on behalf of, N.O.K.F., appealed the
Commissioner's denial of benefits to this Court. On June
8, 2018, judgment was entered remanding Plaintiff's case
to the Commissioner pursuant to sentence four of 42 U.S.C.
§ 405(g). (Doc. 20). Plaintiff now moves for an award of
$2, 483.83 in attorney's fees and expenses under 28
U.S.C. § 2412, the Equal Access to Justice Act
(hereinafter “EAJA”), requesting compensation for
13.70 attorney hours of work before the Court at an hourly
rate of $150.00 for work performed in 2018, and $428.83 in
expenses and costs. (Doc. 21). Defendant filed a response to
Plaintiff's application, stating that she does not oppose
the hours claimed or the hourly rate requested. (Doc. 22).
Defendant argues that the filing fee should be categorized as
a cost, and postage should be categorized as an expense.
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 13.70 hours of
attorney work performed in 2018, at an hourly rate of
$150.00. 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).
decision to increase the hourly rate is not automatic and
remains at the discretion of the district court. McNulty
v. Sullivan, 886 F.2d 1074 (8th Cir. 1989). In
Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990),
the Court stated that the hourly rate may be increased when
there is “uncontested proof of an increase in the cost
of living sufficient to justify hourly attorney's fees of
more than [the maximum statutory hourly rate], ” such
as a copy of the Consumer Price Index (CPI). Plaintiff's
counsel submitted a CPI in support of his requested hourly
rate. The Court will therefore award Plaintiff's counsel
an hourly rate of $150.00.
Court next addresses the number of hours Plaintiff's
counsel claims he spent working on this case. Plaintiff's
counsel seeks 0.20 hour on January 11, 2018, to drive to and
from the courthouse to file Plaintiff's complaint.
Regarding this time, the Court notes that clerical or
secretarial tasks are not compensable under the EAJA. See
Granville House, Inc. v. Department of HEW, 813 F.2d
881, 884 (8th Cir. 1987) (work which could have been
completed by support staff is not compensable under the
EAJA). Accordingly, the Court will deduct 0.20 attorney hour
from the total compensable hours sought.
counsel seeks reimbursement for $428.83 in expenses and costs
incurred with regard to postage and the filing fee. Such
expenses and costs are recoverable under the EAJA and the
Court finds $428.83 to be a reasonable award. See Kelly
v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988).
upon the foregoing, the Court finds that Plaintiff is
entitled to an attorney's fee award under the EAJA for:
13.50 (13.70-0.20) attorney hours for work performed in 2018,
at an hourly rate of $150.00, for a total attorney's fee
of $2, 025.00; and $28.83 in expenses and $400.00 in costs.
This amount should be paid in addition to, and not out of,
any past due benefits which Plaintiff may be awarded in the
future. Based upon the holding in Astrue v. Ratliff,
130 S.Ct. 2521 (2010), the EAJA award should be paid directly
parties are reminded that the award herein under the EAJA
will be taken into account at such time as a reasonable fee
is determined pursuant to 42 U.S.C. § 406, in order ...