United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
now before the Court is Plaintiff's Motion for
Attorney's Fees Pursuant to the Equal Access to Justice
Act (“EAJA”). ECF No. 19. Defendant has responded
to this Motion and raises no objections to this Motion. ECF
to the provisions of 28 U.S.C. § 636(b)(1) and (3)
(2009), the Honorable Susan O. Hickey referred this Motion to
the Court for the purpose of making a report and
recommendation. In accordance with that referral, this Court
enters the following report and recommendation.
Kay Rhodes Arterbury (“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 October 24,
2018, Plaintiff's case was reversed and remanded pursuant
to Sentence Four of 42 U.S.C. § 405(g). ECF No. 18.
February 13, 2019, 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 in the total amount of $3,
773.00. Id. Defendant responded to this
Motion on February 27, 2019 and raises no objections to
Plaintiff's requested fees. 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). See also General
Order 39 (“Attorney's Fees Under the Equal Access
to Justice Act”).
present action, Plaintiff's case was remanded to the SSA.
ECF Nos. 17-18. 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. 22. The
Court construes the lack of opposition to this application as
an admission that the government's decision to ...