Counce v. Social Security Administration Commissioner

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Case 3:21-cv-03005-TLB Document 26 Filed 02/28/22 Page 1 of 2 PagelD #:
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION
SHANNON COUNCE PLAINTIFF
V. CASE NO. 3:21-CV-3005
KILOLO KIJAKAZI, Acting Commissioner,'
Social Security Administration DEFENDANT
OPINION AND ORDER

Pending before the Court is Plaintiffs Motion for Attorney Fees Under the Equal
Access to Justice Act. (Doc. 23). On February 24, 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 $4,602.90, representing a total of 21.20 attorney hours
for work performed in 2021 and 2022 at an hourly rate of $216.00 and $23.70 in service
expenses. (Doc. 23-1). On February 25, 2022, the Commissioner filed a response
voicing no objections. (Doc. 25).

The Court finds that 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); Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990) (the

hourly rate may be increased when there is “uncontested proof of an increase in the cost

1 Kilolo Kijakazi became Acting Commissioner of the Social Security Administration on
July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo
Kijakazi should be substituted as the defendant in this suit.

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

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of living sufficient to justify hourly attorney’s fees of more than $75.00 an hour); 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). However, the hourly rate requested exceeds the hourly rate approved for the
years in question. Accordingly, Plaintiff is entitled to an attorney's fee award under EAJA
in the amount of $4,401.40 ((20.5 hours in 2021 X $206.00/hour) + (.70 hours in 2022 X
$221.00) + $23.70 in service fees).

Pursuant to Astrue v. Ratliff, 560 U.S. 586, 596 (2010), the EAJA fee award should
be made payable to Plaintiff; however, as a matter of practice, an EAJA fee made payable
to Plaintiff may properly be mailed to Plaintiffs counsel. The parties are reminded that,
to prevent double recovery by counsel for the Plaintiff, the award herein under the EAJA
will be considered at such time as a reasonable fee is determined pursuant to 42 U.S.C.
§ 406.

IT IS THEREFORE ORDERED that, based upon the foregoing, Plaintiff is awarded
the sum of $4,401.40 for attorney's fees pursuant to the EAJA, 28 U.S.C. § 2412.

IT IS SO ORDERED on this 28th day of February, 2022.

/s/ Timothy L. Brooks

TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE