United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
MAGISTRATE JUDGE
HON.
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
Pending
now before this Court is Plaintiff's Request for Attorney
Fees Under the Equal Access to Justice Act
(“EAJA”). ECF No. 21.[1] Defendant has responded to
this Motion and objects to the number of hours claimed by
counsel. ECF No. 22. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3) (2009), the Honorable Susan O.
Hickey, referred this Motion to this Court for the purpose of
making a report and recommendation. In accordance with that
referral, this Court enters the following report and
recommendation.
1.
Background:
Latonia
Tatum (“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 September 25, 2019, Plaintiff's
case was remanded pursuant to sentence four of 42 U.S.C.
§ 405(g). ECF No. 20.
On
December 6, 2019, Plaintiff filed the present Motion
requesting an award of attorney's fees under the EAJA.
ECF No. 21. With this Motion, Plaintiff requests an award of
attorney's fees and costs of $10, 036.54. Id.
This amount represents 68.80 attorney hours at an hourly rate
of $145.88 for work performed. Id. A review of the
Description of Services contained in the Motion shows only
49.0 hours of attorney work performed by Plaintiff's
counsel. ECF No. 21, Pgs. 5-6. Defendant responded to this
Motion on December 9, 2019. Defendant objects to the number
of hours claimed by counsel. ECF No. 22.
2.
Applicable Law:
Pursuant
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).
An
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
follows:
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
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).
3.
Discussion:
In the
present action, Plaintiff's case was remanded to the SSA.
ECF No. 20. 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 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.
Plaintiff
requests a total award of $10, 036.54 under the EAJA. ECF No.
21. Plaintiff requests these attorney fees at a rate of
$145.88[2] per hour for work performed. Id.
Defendant does not object to this hourly rate. 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 alsoJohnson, 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. ยง
...