United States District Court, E.D. Missouri, Eastern Division
DEAN H. BERINGER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney's Fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”). [Doc. 29.] Plaintiff
sought an award of attorney's fees in the amount of $8,
314.87 for 42.9 hours of attorney work at the rate of $193.82
per hour. Defendant Carolyn Colvin, Acting Commissioner of
Social Security, represents to the Court that the parties
have agreed to attorney's fees in the amount of $7,
000.00. [Doc. 30.] Based on the following, the Court will
grant Plaintiff attorney's fees in the amount of $7,
Factual and Procedural Background
Dean Beringer filed this action, pursuant to 42 U.S.C. §
405(g) for judicial review of the final decision of Defendant
denying Plaintiff's application for supplemental security
income under the Social Security Act. On September 13, 2016,
the Court issued a Memorandum and Order and Judgment and
Order of Remand in favor of Plaintiff pursuant to sentence
four of 42 U.S.C. § 405(g). [Docs. 27, 28.] Plaintiff
filed a Motion for Attorney's Fees on November 15, 2016.
[Doc. 29.] The Commissioner filed a response on November 18,
2016. [Doc. 30.]
Standard of Review
court shall award to a prevailing party. . . fees and other
expenses . . . incurred by that party in any civil action
(other than cases sounding in tort), including proceedings
for judicial review of agency action, brought by or against
the United States in any court having jurisdiction of that
action, unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §
seeking an award of fees and other expenses must (1) submit
to the court an application for fees and other expenses which
shows that the party is a prevailing party and eligible to
receive an award; (2) provide the amount sought, including an
itemized statement from any attorney or expert witness
representing or appearing on behalf of the party stating the
actual time expended and the rate at which fees and other
expenses were computed; (3) allege that the position of the
United States was not substantially justified, and (4) make
the application within thirty days of final judgment of the
action. 28 U.S.C. § 2412(d)(1)(B). The determination of
whether the position of the United States was substantially
justified shall be determined on the basis of the record made
in the action for which the fees are sought. Id.
“In sentence four remand cases, the filing period
begins after the final judgment (“affirming, modifying,
or reversing”) is entered by the Court and the appeal
period has run so that the judgment is no longer
appealable.” Melkonyan v. Sullivan, 501 U.S.
89, 102 (1991) (citing 28 U.S.C. § 2412(d)(2)(G)
(“Final judgment means a judgment that is final and not
is well-settled that in order to be a prevailing party for
EAJA purposes, plaintiff must have received some, but not
necessarily all, of the benefits originally sought in his
action.” Stanfield v. Apfel, 985 F.Supp. 927,
929 (E.D. Mo. 1997) (citing Swedberg v. Bowen, 804
F.2d 432, 434 (8th Cir.1986)). Obtaining a sentence four
judgment reversing the Secretary's denial of benefits is
sufficient to confer prevailing party status. Shalala v.
Schaefer, 509 U.S. 292, 302 (1993).
action, the Court finds that Plaintiff has demonstrated that
an award of attorney's fees under the EAJA is appropriate
in this matter. First, Plaintiff is a prevailing party in
this action, because he has obtained a reversal of the
Commissioner's denial of his application for benefits.
Plaintiff's application for attorney's fees is
reasonable, but will be reduced due to the parties'
agreement. Plaintiff initially requested fees in the amount
of $8, 314.87 for 42.9 hours of attorney work at the rate of
$193.82 per hour. [Doc. 29.] The application includes an
itemized statement from his attorney stating the actual time
expended and the rate at which the attorney's fees were
computed. The Court has carefully reviewed Plaintiff's
time records and the Court agrees that a reduction in the
requested fee should be taken and affirms the amount agreed
to by the parties.
EAJA sets a statutory limit on the amount of fees awarded to
counsel at $125.00 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.” 28 U.S.C. § 2412(d)(2)(A)(ii). “In
determining a reasonable attorney's fee, the court will
in each case consider the following factors: time and labor
required; the difficulty of questions involved; the skill
required to handle the problems presented; the attorney's
experience, ability, and reputation; the benefits resulting
to the client from the services; the customary fee for
similar services; the contingency or certainty of
compensation; the results obtained; and the amount
involved.” Richardson-Ward v. Astrue, 2009
WL1616701, No. 4:07-CV-1171 JCH at *1 (E.D. Mo. June 9,
2009). In the motion requesting attorney's fees,
Plaintiff seeks an increase in the attorney's fee based
on an increase in the cost of living since the EAJA's
enactment of the hourly rate of $125.00 per hour.
“Although the district court may, upon proper proof,
increase the [$125.00] per hour rate to reflect the increase
in the cost of living, this increase is not automatic.”
McNulty v. Sullivan, 886 F.2d 1074 (8th Cir. 1989)
(internal citations omitted).
counsel cited evidence from the U.S. Department of Labor,
explaining the change in the cost of living from 1996 when
the $125.00 hourly limitation became effective until 2016.
Plaintiff and Defendant have agreed upon an award of
attorney's fees. Upon consideration of these facts, the
Court finds that a total fee award of $7, 000.00 is
reasonable. As alleged by Plaintiff, the Court finds that the
Defendant's position was not substantially justified.
Plaintiff's application for fees was timely filed.
Therefore, the Court will award Plaintiff attorney's fees
in the amount of $7, 000.00.
has submitted an affidavit assigning any award he may receive
under the EAJA to his counsel of record. The EAJA requires
that the attorney's fee award be awarded to the
prevailing party, in this case the Plaintiff, not the
Plaintiff's attorney. Astrue v. Ratcliff, 130
S.Ct. 2521, 2525 (2010) (the term “prevailing
party” in fee statutes is a “term of art”
that refers to the prevailing litigant) (citing 42 U.S.C.
§ 2412(d)(1)(A)). Awards of attorney fees to the
prevailing party under the EAJA are “subject to
[g]overnment offset to satisfy a pre-existing debt that the
litigant owes the United States.” Ratcliff,
130 S.Ct. at 2524. Any award for attorney's fees must be
subject to any government offset, even if the Plaintiff has
assigned his right to the award to his attorney. ...