United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the Court on the plaintiff's motion for
attorney fees and costs under Equal Access to Justice Act, 28
U.S.C. § 2412(d), Filing No. 16.
EAJA provides for the award of attorney fees if: (1) the
person is a prevailing party; (2) the individual's net
worth did not exceed two million dollars at the time the
civil action was filed; and (3) the fees and expenses were
“incurred by that party in [the] civil action” in
which it prevailed. 28 U.S.C. § 2412(d)(1)(A)-(2)(B);
United States Sec. and Exch. Comm'n v. Zahareas,
374 F.3d 624, 630 (8th Cir. 2004). Courts called upon to
interpret the EAJA should endeavor to interpret the fee
statute in light of its purpose, which is to
“'eliminate for the average person the financial
disincentive to challenge unreasonable governmental
actions.'” Astrue v. Ratliff, 560 U.S.
586, 599 (2010) (Sotomayor, J., concurring) (quoting
Commissioner v. Jean, 496 U.S. 154, 1631990)).
prevailing Social Security claimant may recover fees under
the EAJA if the Commissioner's position was not
substantially justified. Goad v. Barnhart, 398 F.3d
1021, 1025 (8th Cir. 2005). The burden of establishing that
the position of the United States was substantially justified
“must be shouldered by the Government.”
Scarborough v. Principi, 541 U.S. 401, 414 (2004).
To establish substantial justification, the Commissioner must
show that the denial of benefits had “a reasonable
basis in law and fact.” Goad, 398 F.3d at
of living increase is specifically mentioned in the EAJA as a
factor that justifies a fee greater than $125.00 per hour. 28
U.S.C.A. § 2412 (d)(2)(A)(ii). Where “an EAJA
petitioner presents uncontested proof of an increase in the
cost of living sufficient to justify hourly attorney's
fees of more than [the amount specified in the EAJA],
enhanced fees should be awarded.” Johnson v.
Sullivan, 919 F.2d 503, 505 (8th Cir.1990); see 28
U.S.C. § 2412(d)(2)(A)(ii).
plaintiff herself, and not her attorney, is the
“prevailing party” contemplated by the EAJA. See
Ratliff, 560 U.S. at 594. However, if the United States
Treasury Department determines that Plaintiff owes no debt
that is subject to offset, the government may accept the
assignment of EAJA fees and pay such fees directly to the
plaintiff's attorney. Id. at 597-98. Lower
courts, including those in this district, have continued to
order payment of awards directly to a plaintiff's
attorney, subject to offset for pre-existing debt to the
Federal Government, where a valid assignment of the award of
attorney's fees from the plaintiff to plaintiff's
counsel is in effect. See Matthews- Sheets v.
Astrue, 653 F.3d 560, 565 (7th Cir. 2011), overruled on
other grounds by Sprinkle v. Colvin, 777 F.3d 421,
427-28 (7th Cir. 2015); Shenk v. Berryhill, No.
8:17CV279, 2019 WL 2191792, at *3 (D. Neb. May 21, 2019).
support of her motion, the plaintiff has shown that according
to the Consumer Price Index (“CPI”) for this
region as reported by the Bureau of Labor Statistics, there
has been an increase in the cost of living from March 29,
1996-when the statutory attorney fee under the EAJA was set
at $125.00 per hour-to the present that would increase the
fee to $203.00 per hour for attorney services and to $100.00
per hour for paralegal services. Filing No. 17-1, Edward A.
Wicklund Affirmation at 2. The plaintiff has also presented
evidence that her attorneys expended 21.6 hours on the
litigation and paralegals expended 8.4 hours, for a total
requested fee of $5, 237.33. Filing No. 17-2, Ex. B, all
professional time ledger; Filing No. 17-3, Ex. C, attorney
time ledger; Filing No. 17-4, Ex. D, paralegal time ledger.
The plaintiff's attorney has also incurred $463.40 in
expenses and costs. Filing No. 17-5, Ex. E, expense ledger;
Filing No. 17-6, Ex. F, costs ledger.
the plaintiff has agreed to waive direct payment of the EAJA
fees and to assign the fees to her attorney. Filing No.
17-7, Ex. G, Dawn Prochaska Affirmation and Waiver of Direct
Payment of Fees. In addition, she has shown her net worth is
less than 2, 000, 000. Id. The government has not
filed any opposition to the motion.
Court finds the plaintiff has satisfied the prerequisites for
an award of allowable fees under the EAJA and her motion
should be granted. The Court first finds that the plaintiff
is a “prevailing party” within the meaning of the
EAJA. The defendant has not shown that its position was
“substantially justified” and there are no
special circumstances that make an award of fees unjust.
Further, the Court finds counsel's devotion of 30 hours
of work to this case was reasonable and hourly rates of $100
per hour for paralegal time and $203 per hour for attorney
time, which is supported by uncontested proof of increases in
the cost of living, is a reasonable fee for work of this
nature in this community. The government has not opposed the
motion and there are no special circumstances in this case
that make an award under the EAJA unjust.
Court finds that the award of attorney fees should be paid
directly to the plaintiff's counsel. There is no
suggestion of pre-litigation debts owed by the plaintiff to
the federal government whose collection would be unfairly
circumvented by paying the fees directly to the
plaintiff's attorney. In light of the assignment, $5,
700.73, subject to any legitimate offset, shall be paid
directly to plaintiff's counsel.
IT IS HEREBY ORDERED THAT:
1. The plaintiff's motion for attorney fees under EAJA
(Filing No. ...