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Curvey v. Berryhill

United States District Court, E.D. Louisiana

July 23, 2018

CHARLES CURVEY
v.
NANCY A. BERRYHILL, Acting COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's motion for attorney's fees and costs. For the reasons that follow, the motion is GRANTED in part and DENIED in part without prejudice.

         Background

         On March 26, 2018, the Court reversed the adverse benefits decision and remanded the case to the Social Security Administration for further proceedings under sentence four of 42 U.S.C. § 405(g).[1] The plaintiff now moves for attorney's fees and costs pursuant to the Equal Access to Justice Act.

         I.

         A.

         The plaintiff submits that he is entitled to recover attorney's fees pursuant to the Equal Access to Justice Act; he seeks $4, 670.75 in attorney's fees (23.8 hours of work at an hourly rate of $196.25). He also seeks to recover the $400.00 filing fee. The defendant does not dispute that obtaining a remand under sentence four renders the plaintiff a “prevailing party” entitled to fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. The defendant agrees to the number of hours requested by the plaintiff, but opposes the requested hourly rate, arguing that this Court typically finds an hourly rate of $175.00 “reasonable in the New Orleans legal market.” If the Court awards EAJA fees based on the rate of $175.00 per hour, the total EAJA fee would be $4, 165.00. The defendant also notes that the $400 filing fee is an award of costs under 28 U.S.C. § 1920, that the fees the plaintiff requests are compensable costs, and that the award under § 1920 must be certified by the Office of the United States Attorney to the Department of Treasury for payment, and such an award is separate from an award of attorney's fees under EAJA.

         B.

         The Equal Access to Justice Act provides that the Court:

shall award to a prevailing party [in a civil action brought against the United States] fees and other expenses, in addition to any costs awarded pursuant to subsection (a)...including proceedings for judicial review of agency action...unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Here, the plaintiff submits, and the defendant does not dispute, that he was the prevailing party in his claim for a period of disability/disability insurance benefits and supplemental social security income, and that the position of the United States was not substantially justified. The Court agrees; the only issue is quantum. And the only dispute as to quantum is which hourly rate should apply.

         II.

         Counsel for the plaintiff requests an adjusted fee of $196.25 per hour for the 23.8 hours attorneys spent working on this matter; a total of $4, 670 in attorney's fees. The plaintiff argues that the EAJA ...


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