Opinion
Case No. 4:10 CV 1871 RWS.
March 2, 2011
ORDER
This matter is before me on Plaintiff's Motion for Attorney Fees [#18] pursuant to the Equal Access to Justice Act ("EAJA"). I entered an Order on February 7, 2011 reversing the decision of the Commissioner on Plaintiff's claims and remanding this case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff has now moved for attorney fees and for payment to be made to Plaintiff's attorney because Plaintiff assigned his right to receive EAJA fee payment to his attorney, David D. Camp.
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). 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 time for appeal has expired. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
The statutory ceiling for an EAJA fee award is $125.00 per hour. 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).
Plaintiff's counsel has submitted a request to be reimbursed in the amount of $4,190.16, which represents 23.7 hours of attorney time at a rate of $176.80 per hour. On February 28, 2011, Defendant responded to Plaintiff's motion indicating the parties jointly agreed to an award of attorney fees of $4,190.16 and that payment would be made to Plaintiff's attorney if no debt is owed by Plaintiff to the United States that is subject to offset [#19]. I construe the lack of opposition to Plaintiff's motion as an admission that the government's decision to deny benefits was not "substantially justified" and that Plaintiff is the prevailing party.
Camp's Declaration of Attorney [#18-1] mistakenly attributes 23.7 hours to Steve Wolf in paragraph #18. The itemized breakdown of hours worked indicate Camp expended 6.8 hours and Wolf expended 16.9 hours for a total of 23.7 hours.
Plaintiff's counsel requested the hourly rate available under the EAJA of $125.00 be increased to $176.80 based upon the Consumer Price Index. This hourly rate is authorized by the EAJA because Plaintiff submitted a CPI in support of his motion. Defendant does not object to an increase in the hourly rate and I find that Plaintiff is entitled to an hourly rate of $176.80. I have reviewed the itemized time Plaintiff's counsel submitted in support of Plaintiff's motion and note that Defendant does not object to the number of hours asserted by Plaintiff's counsel. I find the time asserted to have been spent representing Plaintiff to be reasonable. As a result, I find that Plaintiff is entitled to an attorney's fee award under EAJA in the amount of $4,190.16, representing 23.7 hours of attorney time at an hourly rate of $176.80.
Plaintiff's motion requests the fee award be paid directly to Plaintiff's counsel because Plaintiff assigned any right he had to receive the EAJA fee payment to David D. Camp as Plaintiff's attorney. Defendant requests that attorney fees be awarded to Plaintiff. Defendant notes that it will determine whether Plaintiff owes a debt to the United States that is subject to offset and that if no such debt is owed, the fee will be made payable to Plaintiff's attorney based on the assignment. The United States Supreme Court has clearly determined that a fee award under the EAJA is "payable to the litigant and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the United States." Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010). As a result, these fees must be awarded to Plaintiff, not Plaintiff's attorney. However, if Plaintiff has executed an assignment to Plaintiff's counsel of all rights in an attorney fee award, and if Plaintiff owes no outstanding debt to the federal government, the attorney fee may be awarded to Plaintiff's attorney.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for Attorneys Fees [#18] is GRANTED in part and DENIED in part. Defendant Commissioner of Social Security shall pay attorney fees and costs in the amount of $4,190.16 and the award shall be made payable in accordance with the directions above.
Dated this 2nd day March, 2011.
MEMORANDUM AND ORDER
Plaintiff Frank Carter asserts that his rights have been violated by his being classified as a sex offender by the Defendants. Carter names the Missouri Board of Probation and Parole, Missouri Parole Officers Laura Birmingham and Matt Bochantin, Texas Board of Pardons and Paroles, and Rissie Owens of the Texas Board of Pardons and Paroles as Defendants. The Texas Board of Pardons and Parole filed a Motion to Dismiss Plaintiff's Complaint on September 13, 2010 [#15]. The Missouri Board of Probation and Parole, Birmingham and Bochantin filed a Motion to Dismiss Plaintiff's Complaint on October 7, 2010 [#19].
On January 10, 2010 I ordered Plaintiff to file an amended complaint. Plaintiff did so on January 26, 2010 [#25]. The Texas Board of Pardons and Parole filed a Motion to Dismiss Plaintiff's Amended Complaint on February 9, 2011 [#27] and the Missouri Board of Probation and Parole, Birmingham and Bochantin filed a Motion to Dismiss Plaintiff's Amended Complaint on February 18, 2011 [#29]. As a result, Defendants' Motions to Dismiss Plaintiff's Original Complaint are now moot.
Accordingly, IT IS HEREBY ORDERED that Defendant Texas Board of Pardons and Parole's Motion to Dismiss [#15] and Defendants Missouri Board of Probation and Parole, Birmingham and Bochantin's Motion to Dismiss [#19] Plaintiff's Original Complaint are DENIED as moot without prejudice.
IT IS FURTHER ORDERED that Plaintiff shall file a response to Defendant Texas Board of Pardons and Parole's Motion to Dismiss Amended Complaint [#27] and Defendants Missouri Board of Probation and Parole, Birmingham and Bochantin's Motion to Dismiss Amended Complaint [#29] no later than April 1, 2011 .
Dated this 2nd day of March, 2011.