Filed: Jul. 05, 2019
Latest Update: Jul. 05, 2019
Summary: RULING AND ORDER ERIN WILDER-DOOMES , Magistrate Judge . Before the Court is Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the "Motion"). 1 The Commissioner of the Social Security Administration (the "Commissioner") has filed a Response. 2 For the reasons set forth herein, the Motion is granted in part and denied in part. I. Background On March 26, 2019, this Court vacated the final decision of the Commissioner denying Plaintiff's applications for di
Summary: RULING AND ORDER ERIN WILDER-DOOMES , Magistrate Judge . Before the Court is Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the "Motion"). 1 The Commissioner of the Social Security Administration (the "Commissioner") has filed a Response. 2 For the reasons set forth herein, the Motion is granted in part and denied in part. I. Background On March 26, 2019, this Court vacated the final decision of the Commissioner denying Plaintiff's applications for dis..
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RULING AND ORDER
ERIN WILDER-DOOMES, Magistrate Judge.
Before the Court is Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the "Motion").1 The Commissioner of the Social Security Administration (the "Commissioner") has filed a Response.2 For the reasons set forth herein, the Motion is granted in part and denied in part.
I. Background
On March 26, 2019, this Court vacated the final decision of the Commissioner denying Plaintiff's applications for disability insurance benefits and supplemental security income and remanded Plaintiff's case for further administrative proceedings.3 A judgment was entered on March 29, 2019.4 On June 18, 2019, Plaintiff filed the instant Motion seeking a compensation for (1) 40.0 hours of attorney fees at an hourly rate of $175.00 and (2) costs in the amount of $100.00 associated with the filing fee for Plaintiff's counsel's Motion for Admission Pro Hac Vice.5 Per its Response, "the Commissioner has no objection to Plaintiff's requested fee, but must note that the statute permitting filings in forma pauperis specifically bars an award of costs against the United States in such proceedings."6
II. Law and Analysis
a. Plaintiff's Request for $7,000.00 in Attorney Fees is Granted
The Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A), provides that a court shall award attorney fees and costs to a prevailing party in a civil action brought against the United States.7 Attorney fees shall be awarded to a prevailing party "unless the Court finds that the position of the United States was substantially justified or special circumstances make an award unjust."8 Plaintiff seeks an award of fees in the amount of $7,000.00 (40.0 hours at the hourly rate of $175.00)9 and the Commissioner has no objection to Plaintiff's requested fee.10 This Court has previously approved an hourly rate of up to $175.0011 and the hours expended appear to be reasonable.12 Accordingly, the Court grants Plaintiff's request for an award of fees in the amount of $7,000.00 pursuant to the EAJA.
b. Plaintiff's Request for $100.00 in Costs is Denied
With respect to the cost of $100.00, the Commissioner asserts that because Plaintiff was proceeding in forma pauperis,13 costs cannot be recovered under the EAJA. 28 U.S.C. § 2412(a)(1) provides:
Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.14
28 U.S.C. § 1915(f)(1) provides:
Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States.
"A number of courts have concluded that § 1915(f)(1) bars an award of costs against the United States in favor of a social security plaintiff proceeding in forma pauperis."15 Relying on § 1915(f)(1), district courts in this Circuit have refused to permit recovery of the costs associated with mailing and photocopying by a social security claimant proceeding in forma pauperis.,16 Significant to Plaintiff's request to recover the $100.00 filing fee associated with counsel's pro hac vice application, § 2412(a)(1) defines "costs" as those "enumerated in section 1920" and § 1920(1) in turn includes "fees of the clerk" as an enumerated cost.17 Because the filing fee qualifies as a cost enumerated in 28 U.S.C. § 1920, and because 28 U.S.C. § 1915(f)(1) prohibits the recovery of costs against the United States where a Plaintiff is proceeding in forma pauperis, the Court denies Plaintiff's request to recover the $100.00 fee.
c. The Award of Fees Shall be Paid Directly to Plaintiff
Finally, the Court notes that the proposed order attached to Plaintiff's Motion provides, inter alia: "Subject to any offset under the Treasury Offset Program, payment of this award shall be made via the Law Offices of Chermol & Fishman, LLC. If EAJA fees and costs are not subject to any offset and an assignment is provided to SSA, the award shall be paid directly to the order of David F. Chermol, Esquire."18 The United States Supreme Court has held that an EAJA fee award is payable to the prevailing litigant, rather than the litigant's counsel.19 Accordingly, the award of attorney fees in this case is to be made payable directly to Plaintiff and mailed to Plaintiff's counsel.
III. Conclusion
For the reasons set forth herein, IT IS HEREBY ORDERED that Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act20 is GRANTED IN PART AND DENIED IN PART.
The Commissioner is ORDERED to remit to Plaintiff's counsel a check made payable to "Linda Kay Rhodus" for attorney fees in the amount of $7,000.00.
IT IS FURTHER ORDERED that Plaintiff's request for recovery of $100.00 in costs associated with counsel's motion to appear pro hac vice is DENIED.
