United States District Court, W.D. Kentucky, Louisville Division
STEPHEN M. NEFF, Plaintiff,
CAROLYN C. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
COLIN H. LINDSAY, Magistrate Judge.
This matter is before the Court on a motion for attorney's fees (the "Motion") (DN 19) filed by the plaintiff, Stephen M. Neff ("Neff"), on November 20, 2014. Neff seeks payment of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The defendant, the Acting Commissioner of the Social Security Administration ("Commissioner") filed a response and partial opposition to the Motion ("Response") (DN 20) on December 12, 2014. Neff did not file a reply. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, the parties have consented to a United States Magistrate Judge conducting all further proceedings in this case. (DN 10.) This includes issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed. This motion is ripe for review.
On June 21, 2013, Neff filed a complaint ("Complaint") with this Court, seeking review of a final decision of the Commissioner pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). (DN 1, p. 1.) Neff filed a Fact and Law Summary on October 30, 2013. (DN 12.) The Commissioner filed a Fact and Law Summary on December 24, 2013. (DN 15.) On September 29, 2014, the Court issued a Memorandum Opinion and an Order reversing the decision of the Commissioner and remanding the case for further proceedings. (DN 16, 17.) The Court entered a final judgment in Neff's favor. (DN 18.)
On November 20, 2014, Neff filed the Motion pursuant to the EAJA, 28 U.S.C. § 2412. Neff seeks an award of attorney's fees in the amount of $4, 438.00. (DN 19, p. 2.) This amount is based on 31.7 hours of work by Neff's counsel at a rate of $140.00 per hour. (Id. ) Neff also seeks costs in the amount of $24.00 and expenses in the amount of $21.60. (Id. ) In support of the Motion, Neff submitted an affidavit executed by counsel, an itemization of services provided, and a decision of this Court in another case, offered for the proposition that an award calculated at an hourly rate in excess of the statutory maximum is appropriate. (DN 19, 19-1, 19-2, 19-3.)
The Commissioner's Responseconcedes that the Motion was timely and does not contest the number of hours of work, the hourly rate requested, or the amount requested for expenses. (DN 20, pp. 1, 5.) However, the Commissioner objects to three aspects of the Motion. First, the Commissioner objects to an award being made payable directly to Neff's counsel rather than to Neff himself, as the Motion appears to request. ( Id., pp. 2-5.) Second, the Commissioner objects to Neff's requested reimbursement of $24.00 for service of the Complaint given that the Court granted Neff's motion to proceed in forma pauperis. ( See id., p. 5; DN 4.) Finally, the Commissioner requests that in ordering any award, the Court separately itemize the amounts awarded for attorney's fees, costs, and expenses. (DN 20, p. 5.) In the below discussion, the Court will address the standard for an award of attorney's fees pursuant to the EAJA, as well as the Commissioner's specific objections to the Motion.
A. Appropriateness of Attorney's Fees Award
The EAJA allows an award of attorney's fees and other expenses against the government provided that:
(1) The party seeking such fees is the "prevailing party" in a civil action brought by or against the United States;
(2) An application for such fees, including an itemized justification for the amount requested, is timely filed within thirty days of final judgment in the action;
(3) The position of the government was not substantially justified; and
(4) No special circumstances make an award unjust.
See 28 U.S.C. § 2412(d)(1)(A)-(B). The Court will not award attorney's fees ...