United States District Court, E.D. Texas, Tyler Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR
ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE
NICOLE MITCHELL, UNITED STATES MAGISTRATE JUDGE
August 22, 2015, Plaintiff initiated this lawsuit by filing a
complaint seeking judicial review of the Commissioner's
decision denying an application for Social Security benefits.
The matter was referred for findings of fact, conclusions of
law and recommendations for the disposition of the matter
pursuant to 28 U.S.C. § 636(b)(1).
Court entered an Order on March 29, 2017 reversing the
Commissioner and remanding the matter to the Commissioner for
further administrative proceedings pursuant to sentence four
of 42 U.S.C. § 405(g). Plaintiff then filed a Motion for
Award of Attorney Fees and Expenses (ECF 29) on June 27,
2017. Plaintiff seeks an award of $4, 727.42 in
attorney's fees and expenses pursuant to the Equal Access
to Justice Act, 28 U.S.C. §2412 (“EAJA”).
The Commissioner filed a response on June 30, 2017 stating
that Plaintiff's requested fees and expenses constitute a
reasonable award of EAJA fees for the services rendered in
this case. The Commissioner requests that the award be made
payable to Plaintiff and sent to Plaintiff's counsel.
“dual purpose” of the EAJA is “to ensure
adequate representation for those who need it and to minimize
the cost of this representation to taxpayers.”
Baker v. Bowen, 839 F.2d 1075 (5th Cir.
1988), reh'g denied, 848 F.2d 66 (5th
Cir. 1988). Eligibility for a fee award under the EAJA
requires, at a minimum, that the claimant be a
“prevailing party, ” that the Commissioner's
position was not “substantially justified, ” that
no “special circumstances make an award unjust, ”
and that any fee application be submitted to the court within
30 days of final judgment and be supported by an itemized
statement. Commissioner INS v. Jean, 496 U.S. 154,
110 S.Ct. 2316, 2319, 110 L.Ed.2d 134 (1990); 28 U.S.C.
§ 2412(d)(1). A “final judgment” is a
judgment that is final and not appealable. 28 U.S.C. §
2412(d)(2)(G). With regard to the amount of fees, 28 U.S.C.
§ 2412(d)(2)(A) states:
(A) “fees and other expenses” includes the
reasonable expenses of expert witnesses, the reasonable cost
of any study, analysis, engineering report, test, or project
which is found by the court to be necessary for the
preparation of the party's case, and reasonable attorney
fees (The amount of fees awarded under this subsection shall
be based upon prevailing market rates for the kind and
quality of services furnished, except that (i) no expert
witness shall be compensated at a rate in excess of the
highest rate of compensation for expert witnesses paid by the
United States; and (ii) attorney fees shall not be awarded in
excess of $125 per hour unless 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.).
remand accomplished pursuant to the fourth sentence of 42
U.S.C. § 405(g) renders the claimant a prevailing party
regardless of whether the claimant is successful in obtaining
benefits on remand. Shalala v. Schaefer, 509 U.S.
292, 300-01, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). The
Commissioner has the burden of proving that his position was
“substantially justified” in this matter and he
has not done so here. Herron v. Bowen, 788 F.2d
1127, 1130 (5th Cir. 1986) (per curiam); see
also Davidson v. Veneman, 317 F.3d 503, 506
(5th Cir. 2003). In addition, the Commissioner has
not alleged or shown special circumstances that would render
an award unjust.
hourly attorney rate sought by Plaintiff exceeds $125.00 per
hour, requiring a finding 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. 28 U.S.C. § 2412(d)(2)(A).
Plaintiff asserts that an increase in the hourly rate is
justified in this case due to increases in the cost of living
as reflected by the Consumer Price Index. The Commissioner
did not file an opposition to Plaintiff s requested monthly
rates ranging from $189.68 per hour to $194.20 per hour. The
Court finds the requested rates to be reasonable.
interest of ensuring adequate representation for those who
need it and to minimize the cost of that representation to
taxpayers, the Court concludes that Plaintiffs Motion for
Award of Attorney Fees and Expenses should be granted.
Plaintiff should be awarded the requested $4, 727.42 in
attorney and paralegal fees.
did not request any amount for expenses. Attorney's fees
under the EAJA are properly payable to the party-litigant,
not directly to the attorney. See Astrue v. Ratliff,
530 U.S. 586, 130 S.Ct. 2521, 2524, 177 L.Ed.2d 91 (2010).
After due consideration, it is hereby
that the Motion for Award of Attorney Fees and Expenses (ECF
29) is GRANTED. The Commissioner shall pay Plaintiff for fees
incurred totaling $4, 727.42 ...