Filed: Jul. 06, 2018
Latest Update: Jul. 06, 2018
Summary: REPORT AND RECOMMENDATION CLIFTON L. CORKER , Magistrate Judge . This matter is before the United States Magistrate Judge under the standing orders of the Court and 28 U.S.C. 636 for a report and recommendation. Plaintiff has moved the Court [Doc. 26] for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412(d)(1)(A). The Defendant has filed a Response advising that it does not oppose the payment of the attorney's fees identified in the Motion [Doc.
Summary: REPORT AND RECOMMENDATION CLIFTON L. CORKER , Magistrate Judge . This matter is before the United States Magistrate Judge under the standing orders of the Court and 28 U.S.C. 636 for a report and recommendation. Plaintiff has moved the Court [Doc. 26] for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412(d)(1)(A). The Defendant has filed a Response advising that it does not oppose the payment of the attorney's fees identified in the Motion [Doc. ..
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REPORT AND RECOMMENDATION
CLIFTON L. CORKER, Magistrate Judge.
This matter is before the United States Magistrate Judge under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. Plaintiff has moved the Court [Doc. 26] for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). The Defendant has filed a Response advising that it does not oppose the payment of the attorney's fees identified in the Motion [Doc. 27].
The Plaintiff's case was recently remanded by the District Court to the Commissioner for further administrative review. While this fact makes Plaintiff entitled to fees under the EAJA, attorney fees under the Social Security Act itself can only be awarded if the Plaintiff is ultimately awarded benefits. Thus, in the event Plaintiff is awarded past due benefits, counsel will be required to refund whichever fee is smaller; either the fee under the EAJA, or the fee under the Social Security Act.
In order to be entitled to an award of attorney fees and expenses under the Equal Access to Justice Act, all of the conditions set forth in 28 U.S.C. § 2412(d)(1)(A), (B) must be met. These are that:
(1) the party seeking the fees is the "prevailing party" in a civil action brought by or against the U.S.,
(2) an application for such fees, including an itemized justification for the amount requested, is timely filed within 30 days of final judgment in the action,
(3) the position of the government is not substantially justified, and
(4) no special circumstances make an award unjust.
The undersigned finds that all of these factors are met in this case.
An affidavit of the hours expended by Plaintiff's counsel has been submitted. The undersigned finds them to be reasonable.
Based upon the foregoing, the court RECOMMENDS that Plaintiff's motion for attorney's fees pursuant to the Equal Access to Justice Act [Doc. 26] be GRANTED and Plaintiff be awarded EAJA fees in the amount of $3,676.40.1 Further, should the Plaintiff be awarded past due benefits, counsel should be required to refund whichever fee is smaller; either the fee under the EAJA, or the fee under the Social Security Act.
