United States District Court, W.D. Arkansas, El Dorado Division
PERRY D. SMITH PLAINTIFF
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT
BARRY A. BRYANT U.S. 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. 16. Defendant responded to
this Motion; and apart from her claim that Plaintiff's
requested rate for 2016 and 2017 was excessive, she raised no
objections to this Motion. ECF No. 17. 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.
November 2, 2017, Perry D. Smith (“Plaintiff”)
appealed to the Court from the Secretary of the Social
Security Administration's (“SSA”) denial of
his request for disability benefits. ECF No. 1. On January
10, 2019, Plaintiff case was reversed and remanded pursuant
to sentence four of 42 U.S.C. § 405(g). ECF Nos. 14-15.
March 21, 2019, Plaintiff filed this Motion. ECF No. 16. With
this Motion, Plaintiff requests an award of $4, 135.60.
Id. This includes 21.1 total hours from 2016 through
2019 at an hourly rate of $196.00. Id. Defendant has
responded to this Motion. ECF No. 17. In this response,
Defendant only objects to Plaintiff's requested hourly
rate for 2016 and 2017 and seeks to reduce Plaintiff's
requested amount to $4, 124.00. Id.
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. 14-15. Defendant does not contest Plaintiff's
claim that he is the prevailing party and does not oppose his
application for fees under the EAJA. ECF No. 17. The Court
construes the 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 $4, 135.60. ECF No. 16. This
includes 21.1 total hours from 2016 through 2019 at an hourly
rate of $196.00. Id. This attorney hourly rate is
authorized by the EAJA as long as the CPI-South Index
justifies this enhanced rate. See General Order 39.
See also 28 U.S.C. § 2412(d)(2)(A);
Johnson, 919 F.2d at 504. In the present action, the
Court finds the CPI-South Index authorizes $188.00 for 2016,
$192.00 for 2017, and $196.00 for 2018 and 2019. Thus, the
Court awards those hourly rates. Plaintiff has also requested
1.2 attorney hours for 2016, 1.9 attorney hours for 2017, and