United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMEDATION
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
February 22, 2018, following an unopposed motion for remand
filed by Defendant, the Court entered final judgment
remanding this case to the Commissioner of Social Security
for further proceedings (D.E. 16). On March 23, 2018,
Plaintiff filed an application for attorney's fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412 (EAJA)(D.E. 19). Plaintiff seeks fees and costs in the
amount of $3, 994.61. Defendant filed a response on March 27,
2018 in which she stated that she is not opposed to the award
of attorney's fees and costs in the amount sought by
Plaintiff (D.E. 20). Defendant asks the Court to order the
Deputy Commissioner to make payment directly to Plaintiff in
care of Plaintiff's attorney.
civil suit brought against the United States or one of its
agencies, the prevailing party is entitled to reasonable
attorney's fees and costs under the EAJA, unless the
Court finds that the position of the government was
substantially justified or the presence of special
circumstances make an award unjust. 28 U.S.C. § 2412.
Plaintiff seeks EAJA fees for 4.30 hours of attorney work at
the rate of $190.30 per hour and for 13.40 hours of attorney
work at the rate of $192.80 per hour.
District Court remanded the case to the Commissioner,
pursuant to the fourth sentence of 42 U.S.C. § 405(g),
for further consideration in accordance with the law (D.E.
16). A social security claimant is a prevailing party under
such circumstances. Shalala v. Shaefer, 509 U.S.
292, 113 S.Ct. 2625, 2631-32 (1993).
Eligibility for Award
counsel asserts that upon information and belief, Plaintiff
is eligible to receive an award of fees and expenses under 28
U.S.C. § 2412(d)(2)(B). Defendant has not argued to the
Position of the Government
award of fees under EAJA, Plaintiff must show that the
position of the government was not substantially justified.
28 U.S.C. § 2412(d)(1)(A). To be substantially
justified, the United States' position must have a
"reasonable basis both in law and in fact."
Pierce v. Underwood, 487 U.S. 552, 565 (1988)
(citations omitted). Put another way, "substantially
justified" means "justified to a degree that could
satisfy a reasonable person." Id.It is more
than merely undeserving of sanctions for frivolousness, but
less than "clearly and convincingly justified."
Id.at 566, 568. Plaintiff's claim was remanded
pursuant to the fourth sentence of 42 U.S.C. § 405 (g),
for further administrative action. Defendant does not argue
that the position of the Commissioner was substantially
Number of Hours Spent
starting point for determining the amount of a reasonable fee
is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. The party seeking an
award of fees should submit evidence supporting the hours
worked and rates claimed. Where the documentation of hours is
inadequate, the district court may reduce the award
accordingly. Also, the district court should exclude from the
initial fee calculation hours that were not reasonably
expended. Hensley v. Eckerhart, 461 U.S. 424, 433
(1982). "To determine the number of hours reasonably
spent, one must first determine the number of hours actually
spent and then subtract from that figure hours which were
duplicative, unproductive, excessive, or otherwise
unnecessary." Grendel's Den, Inc. v.
Larkin, 749 F.2d 945, 950 (1st Cir. 1984).
requests compensation for 18.70 attorney hours (Ex. 2 to Pet.
for Att. Fees, D.E. 19 at pp. 14-15). The time spent appears
reasonable in view of the size of the administrative record
and the detailed legal and factual arguments raised in
Hourly Rate ...