United States District Court, E.D. Missouri, Eastern Division
KELLY B. VANCIL, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff's Petition to
Award Attorney Fees Pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412 (“EAJA”). [Doc. 27.]
Plaintiff requests attorney's fees in the amount of $4,
333.55, at the rate of $191.75 per hour for 22.60 hours of
work between 2017 and 2019. Defendant Andrew M. Saul,
Commissioner of Social Security, does not object to
Plaintiff's request for attorney's fees, nor the
amount requested. [Doc. 28.] Based on the following, the
Court will award Plaintiff attorney's fees in the amount
of $4, 333.55.
Factual and Procedural Background
Kelly Vancil 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 disability insurance
benefits under the Social Security Act. [Doc. 1.] On
September 30, 2019, the Court issued a Memorandum and Order
and Judgment in favor of Plaintiff pursuant to sentence four
of 42 U.S.C. § 405(g). [Docs. 25, 26.] Plaintiff filed a
request for attorney's fees under the EAJA on November
23, 2019. [Doc. 27.] Defendant filed a response on December
9, 2019. [Doc. 28.] Plaintiff filed a Reply Brief on December
9, 2019. [Doc. 29.]
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 appealable.”)).
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 she has obtained a reversal of the
Commissioner's denial of her application for benefits.
Plaintiff's application for attorney's fees is
reasonable. Plaintiff requests attorney's fees in the
amount of $4, 333.55 at the rate of $191.75 per hour for
22.60 hours of work between 2017 and 2019. Plaintiff includes
an itemized statement from her attorney stating the actual
time expended and the rate at which the attorney's fees
were computed. Therefore, the Court will award Plaintiff
attorney's fees for a total of 22.60 hours of work.
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-1301 JCH at *1 (E.D. Mo. June 9,
2009). “The decision to increase the hourly rate is at
the discretion of the district court.” Id. at
*2. “Where, as here, an EAJA petitioner presents
uncontested proof of an increase in the cost of living
sufficient to justify hourly attorney's fees of more than
[$125.00] per hour, enhanced fees should be awarded.”
Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.
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 and the period
of time between 2017 and 2019. Defendant does not contest the
hourly rate, the total fee request, nor the number of hours
itemized in the invoice. Upon consideration of these facts,
the Court finds that the hourly rate, number of hours
expended, and a total fee award of $4, 333.55 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 $4, 333.55 in
attorney's fees at the rate of $191.75 per hour for 22.60
hours of work between 2017 and 2019.
has submitted an affidavit assigning any award she may
receive under the EAJA to her 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, 560
U.S. 586, 591 (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 a [g]overnment
offset to satisfy a pre-existing debt that the litigant owes
the United States.” Ratcliff, 560 U.S. at 589.
Any award for attorney's fees must be subject to any
government offset, even if the Plaintiff has assigned her
right to the award to her ...