Opinion

Calhoun v. Social Security Administration

Court
District Court, E.D. Louisiana
Filed
Nov 25, 2020
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JENNIFER MARIE CALHOUN CIVIL ACTION

v. NO. 18-9574

ANDREW SAUL, COMMISSIONER SECTION "F"

OF THE SOCIAL SECURITY ADMINISTRATION

ORDER AND REASONS

Before the Court is the plaintiff’s motion for attorney’s

fees pursuant to the Equal Access to Justice Act and the

plaintiff’s motion seeking an extension of time to file the motion

for attorney’s fees. For the reasons that follow, the motion for

an extension of time is GRANTED as unopposed and the motion for

attorney’s fees is GRANTED in part (insofar as attorney’s fees

shall be awarded at a modified rate) and DENIED in part without

prejudice (insofar as the plaintiff offers no support for the

recovery of the $400 filing fee as costs under the EAJA).

Invoking the Equal Access to Justice Act, the plaintiff

requests that the Court award $7,617.19 in attorney’s fees and

$400 in costs. The Commissioner neither opposes the request

seeking an extension of time to file the motion for attorney’s

fees, nor does it oppose the request seeking an award of attorney’s

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fees and costs. The Commissioner objects only to the $205.87

hourly rate utilized by the plaintiff to determine attorney’s fees

owed. The Commissioner submits that the Court should award $400

in costs and $7,191.49 in EAJA fees to the plaintiff based on the

Consumer Price Index rate for the South Urban B/C region for the

relevant years in which work was performed on this case. The Court

agrees that an attorney’s fee award is warranted using the Consumer

Price Index rates for the relevant years for the South Urban B/C

region.

The Equal Access to Justice Act provides that the Court shall

award attorney’s fees and costs to a prevailing party in a civil

action brought against the United States “unless the court finds

that the position of the United States was substantially justified

or that special circumstances make an award unjust.” See 28 U.S.C.

§ 2412(d)(1)(A); see also Sims v. Apfel, 238 F.3d 597, 600-601

(5th Cir. 2001)(citing Commissioner v. Jean, 496 U.S. 154, 158

(1990))(The Equal Access to Justice Act, 28 U.S.C. § 2412, provides

a mandatory attorney’s fee award for a prevailing party if (1) the

claimant is a “prevailing party”; (2) the position of the United

States was not “substantially justified”; and (3) there are no

special circumstances that make an award unjust.). In light of

the Court’s Order issued on April 17, 2020, remanding this case to

the Commissioner for further administrative proceedings, the

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parties agree that the plaintiff is the prevailing party in this

action brought under the Social Security Act. As the Commissioner

correctly points out, an EAJA fee award is payable to the

prevailing litigant, not the attorney. See Astrue v. Ratliff, 560

U.S. 586, 589-92 (2010).

The Court finds that the prerequisites of the EAJA are met on

this record. The only dispute is concerning quantum. The parties

agree that the time spent by plaintiff’s counsel was reasonable;

they disagree on the hourly rate. The Commissioner insists that

the across-the-board hourly rate sought to be applied by the

plaintiff should be adjusted in favor of the hourly rate that

increases slightly in each year during which plaintiff’s counsel

worked on the case. The Court agrees.1

For the uncontested reasons presented by the parties and based

on the factual predicate offered in support of the motion as well

as the hourly rate(s) based on the Consumer Price Index as briefed

by the Commissioner, IT IS ORDERED: that the motion for attorney’s

1 The Court agrees with the Commissioner’s submission concerning

the hourly rate(s) that should apply to the undisputed hours worked

by plaintiff’s counsel. The Commissioner submits that the

plaintiff’s attorney worked on this case for 4.25 hours in 2018;

at $191.85 per hour, the fee should be $815.36. The plaintiff’s

attorney worked on this case for 29 hours in 2019; at $194.36 per

hour, the fee should be $5,636.44. The plaintiff’s attorney worked

on this case for 3.75 hours in 2020; at $197.25 per hour, the fee

should be $739.69. A total attorney’s fee award of $7,191.49.

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fees is hereby GRANTED; $7,191.49 in attorney’s fees is hereby

awarded to the plaintiff, but the request for $400.00 in costs is

DENIED without prejudice.* The Commissioner is hereby ordered to

pay $7,191.49 under the Equal Access to Justice Act, payable to

the plaintiff, Jennifer Marie Calhoun; the fee award may be mailed

to plaintiff’s counsel, Paul Brian Spurlock, Esquire, Disability

Law Center, 3525 Hessmer Ave., Ste. 301, Metairie, Louisiana 70002.

New Orleans, Louisiana, November 25, 2020

MARTIN{JL. C. (FELDMAN

UNITED STATES DISTRICT JUDGE

2 Counsel’s request to recover costs in the amount of the $400.00

filing fee is unsupported. Counsel does not invoke a procedural

vehicle for recovery of such a fee. Filing fees are not awarded

procedurally under the EAJA; rather, certain fees might be awarded

under 28 U.S.C. §$ 1920. An award under Section 1920 must be

certified by the Office of the United States Attorney to the

Department of Treasury for payment. Counsel may re-urge the request

to be awarded $400.00 in costs by way of supported motion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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