burden is on the Commissioner to show substantial justification for the government’s denial of benefits
How later courts described this case
- burden is on the Commissioner to show substantial justification for the government’s denial of benefits
- 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”)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BILLY BROWN PLAINTIFF
v. CIVIL NO. 2:22-cv-2068-PKH-MEF
KILOLO KIJAKAZI, Acting Commissioner,
Social Security Administration DEFENDANT
MEMORANDUM OPINION AND ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). (ECF No. 24). The matter is ripe for resolution.
On October 25, 2022, Plaintiff filed a motion for attorney’s fees and costs under 28 U.S.C.
§ 2412, the Equal Access to Justice Act (hereinafter “EAJA”), requesting $11,170.00, representing
a total of 32.46 attorney hours in 2022, at an hourly rate of $225.00, and 35.15 paralegal hours, at
an hourly rate of $110.00. (ECF No. 24). On November 4, 2022, the Plaintiff and Defendant
entered into a stipulation agreement, agreeing to a total fee award of $10,735.23, but providing no
information as to the number of hours or the hourly rates for the time awarded. (ECF No. 28).
It is the opinion of the undersigned that the Plaintiff is entitled to a fee award in this case,
as he is the prevailing party, the government’s decision to deny benefits was not “substantially
justified,” and the time asserted to have been spent in the representation of the Plaintiff before the
district court is reasonable. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986) (burden is
on the Commissioner to show substantial justification for the government’s denial of benefits); 28
U.S.C. § 2412(d)(2)(A) (statutory ceiling for an EAJA fee award is $125.00 per hour); Johnson v.
Sullivan, 919 F.2d 503, 504-505 (8th Cir. 1990) (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”)); and, Hensley v.
Eckerhart, 461 U.S. 424, 430 (1983) (in determining reasonableness, court looks at 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). We find, however, that the hourly rates requested for
both attorney and paralegal hours exceed the hourly rates approved by the Court. The current rate
for attorney hours performed in 2022 is $221.00, while the rate for paralegal time is $75.00 per
hour. Accordingly, we find that the Plaintiff is entitled to attorney’s fees in the amount of
$9,809.91 ((32.46 x $221 = $7,173.66) + (35.15 x $75 = $2,636.25)).
Pursuant to Astrue v. Ratliff, 560 U.S. 586, 596 (2010), the EAJA fee award should be
made payable to Plaintiff. As a matter of practice, however, an EAJA fee made payable to Plaintiff
may properly be mailed to Plaintiff’s counsel.
The parties are reminded that, in order to prevent double recovery by counsel for the
Plaintiff, the award herein under the EAJA will be taken into account at such time as a reasonable
fee is determined pursuant to 42 U.S.C. § 406.
Accordingly, the Plaintiff is awarded the sum of $9,809.91 for attorney’s fees pursuant to
the EAJA, 28 U.S.C. § 2412.
DATED this 16th day of November 2022.
/s/ Mark E. Ford
HON. MARK E. FORD
CHIEF UNITED STATES MAGISTRATE JUDGE