Opinion
6:21cv472
11-29-2022
ALESA DOMENECH v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
K. MICOL MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff Alesa Domenech initiated this lawsuit by filing a complaint seeking judicial review of the Commissioner's decision denying an application for Social Security benefits. Before the Court is Plaintiff's Application for Attorney's Fees Under the Equal Access to Justice Act (ECF 21). The Court referred the motion for proposed findings of fact and recommendations for disposition (ECF 23). For the reasons below, it is recommended that the motion be granted.
Background
The Court entered an Order on September 8, 2022 reversing the Commissioner's final administrative decision 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 the Application for Attorney's Fees Under the Equal Access to Justice Act and a memorandum in support (ECF 21). Plaintiff attached an itemized record of attorney work on the case. Plaintiff seeks an award of $6,351.36 in attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412 (“EAJA”), plus $402.00 in court costs for a total award of $6,753.36. The Commissioner filed a response (ECF 24) stating no opposition to the requested award.
Discussion
The “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.).
A 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, by not opposing the motion the Commissioner has not alleged or shown special circumstances that would render an award unjust.
The 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 to match the prevailing rate for attorneys in the region. Plaintiff requests an hourly rate of $211.36 for attorney work in 2021 and 2022. The requested rate is reasonable.
Conclusion
In the interest of ensuring adequate representation for those who need it and to minimize the cost of that representation to taxpayers, the Court concludes that Plaintiff's motion should be granted. Plaintiff should be awarded the requested $6,351.36 in attorney fees and $402.00 in court costs. 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).
RECOMMENDATION
It is hereby RECOMMENDED that the Application for Attorney's Fees Under the Equal Access to Justice Act (ECF 21) be GRANTED. The Commissioner should pay Plaintiff for fees incurred totaling $6,351.36 pursuant to the EAJA, 28 U.S.C. § 2412(d), with the funds payable to Plaintiff and forwarded to Plaintiff through her attorney of record. The Commissioner should also pay $402.00 in court costs from the Department of Justice Judgment Fund, for a total award of $6,753.36.
Within fourteen days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b).
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after service shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir.1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).
So ORDERED