United States District Court, N.D. Iowa, Western Division
ORDER REGARDING PLAINTIFF'S MOTION FOR AN AWARD
OF ATTORNEY FEES
LEONARD T. STRAND CHIEF UNITED STATES DISTRICT JUDGE
matter is before me on plaintiff's motion (Doc. No. 20)
and amended motion (Doc. No. 22) for an award of attorney
fees pursuant to the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412(d). On January 18, 2017, I entered an
order (Doc. No. 18) reversing and remanding the decision of
the Commissioner of Social Security (Commissioner). On
January 24, 2017, plaintiff filed a motion (Doc. No. 20)
requesting an award of attorney fees in the amount of $9,
611.51. Plaintiff submitted an itemization of her
attorney's services and other materials in support of the
motion (Doc. Nos. 20-1, 20-2, 20-3).
Commissioner has filed a response (Doc. No. 21) agreeing to
the hourly rates put forth by plaintiff but objecting to the
number of hours spent on various tasks as reflected in the
itemized services. Doc. No. 20-2. Based on those objections
and the corresponding reductions, the Commissioner indicates
it has no objection to an award not to exceed $7, 456.88.
Plaintiff has filed an amended motion (Doc. No. 22) stating
that while she does not agree with the Commissioner's
stated reasons for the deductions, she agrees to reduce the
request of attorney fees to $7, 456.88.
fees may be awarded to a “prevailing party” in a
Social Security appeal under EAJA. 28 U.S.C. § 2412(d).
The statute provides as follows:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
U.S.C. § 2412(d)(1)(A). The Eighth Circuit Court of
Appeals has had little occasion to elaborate on what
constitutes “special circumstances.” See Koss
v. Sullivan, 982 F.2d 1226, 1229 (8th Cir. 1993)
(finding no special circumstances but stating “the
denial of fees to counsel whose efforts brought about the
Secretary's change of position is unjust”). The
Eighth Circuit has, however, specifically addressed when a
position is “substantially justified.” See,
e.g., Lauer v. Barnhart, 321 F.3d 762, 764-65
(8th Cir. 2003); Cornella v. Schweiker, 728
F.2d 978, 981-82 (8th Cir. 1984).
A position enjoys substantial justification if it has a
clearly reasonable basis in law and fact. Accordingly, the
Commissioner can advance a losing position in the district
court and still avoid the imposition of a fee award as long
as the Commissioner's position had a reasonable basis in
law and fact. Further, a loss on the merits by the
Commissioner does not give rise to a presumption that [he or]
she lacked substantial justification for [his or] her
position. The Commissioner does, however, at all times bear
the burden to prove substantial justification.
Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir.
2005) (citations omitted); see Lauer, 321 F.3d at
765 (recognizing “the overriding, fundamental principal
[sic] that the government's position must be well founded
in fact to be substantially justified”); Sawyers v.
Shalala, 990 F.2d 1033, 1034 (8th Cir. 1993) (“To
be substantially justified, the [Commissioner] must show that
her position was ‘justified to a degree that could
satisfy a reasonable person.'” (quoting Pierce
v. Underwood, 487 U.S. 552, 565 (1988))).
obtain an EAJA award, the party must apply for the award
“within thirty days of final judgment in the
action” and “allege that the position of the
United States was not substantially justified.” 28
U.S.C. § 2412(d)(1)(B). However, “the
provision's 30-day deadline for fee applications and its
application-content specifications are not properly typed
‘jurisdictional, '” but instead are
“ancillary to the judgment of a court.”
Scarborough v. Principi, 541 U.S. 401, 413-14
(2004). The government may waive this requirement because it
is present to protect the government's interests. See
Vasquez v. Barnhart, 459 F.Supp.2d 835, 836 (N.D. Iowa
attorney fees are appropriate, the reasonable hourly rate for
such fees is established by statute as follows:
[A]ttorney fees shall not be awarded in excess of $125 per
hour unless the court determines that an increase in the cost
of living or a special factor, such as the limited
availability of qualified attorneys for ...