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.