Wheat v. Comm'r, Soc. Sec. Admin.

Full title: BRYAN WHEAT v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

Court: United States District Court, E.D. Texas, Tyler Division

Date published: Jun 24, 2024

6:22cv277-JDK-KNM (E.D. Tex. Jun. 24, 2024)

Opinion

6:22cv277-JDK-KNM

06-24-2024

BRYAN WHEAT v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

K. NICOLE MITCHELL UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

K. NICOLE MITCHELL UNITED STATES MAGISTRATE JUDGE

Plaintiff Bryan Wheat 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 Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412(d) (ECF 22). The Commissioner did not file a response. The motion is referred in accordance with 28 U.S.C. § 636. For the reasons below, the motion should be GRANTED.

Background

The Court entered an Order and Final Judgment on March 22, 2024 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 present motion on June 3, 2024 seeking an EAJA award of $11,593.65 in fees and $502.00 in costs. To date, the Commissioner has not filed a response or otherwise opposed the motion.

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 (5^th Cir. 1988), reh'g denied, 848 F.2d 66 (5^th 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). Plaintiff submits that the thirty-day deadline does not begin to accrue until the expiration of the 60-day deadline to file an appeal set out in FED. R. APP. 4(a)(1)(B) when a party is the United States or a United States officer sued in an official capacity. 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” and he has not done so here. Herron v. Bowen, 788 F.2d 1127, 1130 (5^th Cir. 1986) (per curiam); see also Davidson v. Veneman, 317 F.3d 503, 506 (5^th Cir. 2003). In addition, 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 due to increases in the cost of living as reflected by the Consumer Price Index. Plaintiff requests a total fee award of $11,593.65.¹The requested award represents an hourly rate of $235.00 for attorney work by Mr. Konoski in 2022, an hourly rate of $236.25 for attorney work by Ms. Laue in 2022, and an hourly rate of $236.25 for attorney work by Mr. Konoski and Ms. Laue in 2023. Plaintiff attached time logs supporting the requested hours of attorney work.²

1 Plaintiff's Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412(d), ECF 22, at *1, 4, 7; ECF 22-3 at *5 (Exhibit B).

2 Id. at *5 (Exhibit B).

Pursuant to 28 U.S.C. § 2412(d)(2)(A), a prevailing plaintiff is only entitled to “reasonable attorney fees.” Here, the Commissioner has not opposed Plaintiff's assertion that $11,593.65 in attorney's fees represents an appropriate award pursuant to the EAJA. The requested fees are reasonable. Plaintiff additionally seeks to recover $502.00 in costs. 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 the motion should be granted. Plaintiff should be awarded the requested $11,593.65 in attorney fees and $502.00 in costs.

The next issue concerns whether the fees are payable to Plaintiff or his attorney. Attorney 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). In part, that is to make fee payments subject to a government offset to satisfy any pre-existing debt that the litigant may owe the United States. Ratliff, 130 S.Ct. at 2524. The present motion asserts that Plaintiff assigned his entitlement to EAJA fees to counsel and includes a copy of Plaintiff's Declaration and Assignment of EAJA Fee.³ The motion seeks payment directly to counsel if Plaintiff does not owe a federal debt that is subject to offset. The motion fails to address the implications of the Anti-Assignment Act, 31 U.S.C. § 3727. At a minimum, Plaintiff's assignment does not comply with the requirement that it be attested to by two witnesses. 31 U.S.C. § 3727(b). Accordingly, payment should be made payable to Plaintiff. See Cardona v. Commissioner of Social Security, 2023 WL 2577200 (W.D.Tex. March 17, 2023). Notably, the fee agreement submitted with the motion reflects that Plaintiff agrees to pay any award of EAJA fees to counsel, providing counsel a sufficient avenue to collect those fees if they are payable to the client.⁴ See Woelper v. Kijakazi, 2023l WL 8656929 (W.D.Tex. Dec. 14, 2023).

3 Id. at *7 (Exhibit C).

4 Id. at *2 (Exhibit A).

In sum, Plaintiff, not his attorney should be paid the sum of $12,095.65, representing $11,593.65 in attorney fees and $502.00 in costs, in connection with this case. Plaintiff's payment of fees owed to his attorney is a matter of the retainer agreement between them.

RECOMMENDATION

It is RECOMMENDED that the Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412(d) (ECF 22) be GRANTED and that the Commissioner pay Plaintiff for fees incurred totaling $11,593.65 pursuant to the EAJA, 28 U.S.C. § 2412(d) and costs totaling $502.00. The payment, totaling $12,095.65, should be made to Plaintiff but mailed to Plaintiff's counsel of record.

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). Written objections shall not exceed five pages. Local Rule CV-72(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 (5^th 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.