United States District Court, E.D. Virginia, Norfolk Division
ANDRE L. FAIRCLOTH, Plaintiff,
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
TOMMY E. MILLER, Magistrate Judge.
This matter comes before the Court on Plaintiff Andre Faircloth's ("Plaintiff's") Motion for Attorney's Fees filed on July 1, 2014. ECF No. 27. On July 21, 2014, the matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. ECF No. 31. For the reasons stated herein, the undersigned RECOMMENDS that Plaintiff's motion be GRANTED in part and that Plaintiff be awarded reasonable attorneys' fees in the amount of $4, 875 plus $350 in costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA").
I. PROCEDURAL BACKGROUND
Plaintiff filed a Complaint on March 29, 2013, challenging the administrative law judge's ("ALJ's") denial of Social Security disability benefits and seeking a remand for reconsideration of his claim or, alternatively, a reversal and award of benefits. Compl., ECF No. 1. Plaintiff filed a motion for summary judgment on July 10, 2013, seeking "an immediate award of benefits" or, in the alternative, a remand to the Social Security Administration. Pl.'s Mot. for Summ. J., ECF No. 10. On August 9, 2013, Defendant filed a motion to remand the case to the Social Security Administration for reconsideration. Def.'s Mot. Remand, ECF No. 17. Plaintiff filed a reply opposing Defendant's motion for remand and requesting the Court to enter an immediate award for benefits. Pl.'s Reply in Opp'n to Def.'s Mot. for Remand, ECF No. 19.
On February 27, 2014, the undersigned filed a Report and Recommendation reversing the Commissioner's decision to deny Plaintiff's claim for benefits, granting Defendant's motion for remand, granting Plaintiff's motion for summary judgment "to the extent it requested remand, " and denying Plaintiff's motion for summary judgment "to the extent it requested an immediate award of benefits, " which the Chief United States District Judge adopted on April 2, 2014. Order, ECF No. 23; see Report & Recommendation, ECF No. 20.
On July 1, 2014, Plaintiff filed a motion for attorneys' fees, requesting the Court to enter an award for attorneys' fees of $25, 125, pursuant to the EAJA. Pl.'s Mot. Att'ys' Fees, ECF No. 27. Plaintiff's request was based on attorneys' fees for 201 hours of work. Id. at 12.
On July 15, 2014, Defendant filed a Brief in Opposition to Plaintiff's motion, arguing that Plaintiff had not "incurred" any attorneys' fees because there was no "express or implied agreement" to pay a fee award to his counsel. Def.'s Br. In Opp'n to Pl.'s Mot. for Att'ys' Fees 4, ECF No. 29 ("Def.'s Opp'n"). Defendant also argued that the requested award was excessive and unreasonable because it is significantly larger than awards in similar cases and covers work that is not compensable under the EAJA. Id. at 5-14. Plaintiff filed a reply on July 18, 2014. Pl.'s Reply in Supp. of Mot. for Att'ys' Fees 3, ECF No. 30 ("Pl.'s Reply").
II. STANDARD OF REVIEW
The EAJA provides that a court " shall award to a prevailing party, " including successful social security claimants, an award for attorneys' fees "incurred by that party in any civil 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) (emphasis added). The statute further provides a maximum rate for attorneys' fees of $125 per hour. 28 U.S.C. § 2412(d)(2)(A)(ii). The Supreme Court has outlined the four requirements for obtaining an attorney's fee award under the EAJA: "(1) that the claimant be a prevailing party'; (2) that the Government's position was not substantially justified'; (3) that no special circumstances make an award unjust';" and (4) "that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement." Comm'r v. Jean, 496 U.S. 154, 158 (1990) (quoting 28 U.S.C. § 2412).
A. Plaintiff Has "Incurred" Attorney's Fees
Defendant argues Plaintiff has not "incurred" attorneys' fees within the meaning of the EAJA, and is therefore not entitled to a fee award because there was no "express or implied agreement" that Plaintiff would remit any fee award to his counsel. Def.'s Opp'n 4 (quoting Phillips v. Gen. Servs. Admin., 924 F.2d 1477, 1583 (Fed. Cir. 1991)); see 28 U.S.C. § 2412(d)(1)(A). The EAJA provides that "a court shall award to a prevailing party other than the United States fees and other expenses... incurred by that party in any civil action... including proceedings for judicial review of agency action." 28 U.S.C. § 2412(d)(1)(A). A party incurs fees within the meaning of the statute if there is an attorney-client relationship. Ed A. Wilson, Inc. v. Gen. Serv. Admin., 126 F.3d 1406, 1409 (Fed. Cir. 1997). An agreement to represent a client pro bono does not foreclose the ability for a party to "incur" attorneys' fees within the meaning of the EAJA. Abusamhadaneh v. Taylor, No. 1:11CV939, 2013 WL 193778 at *12 (E.D. Va. Jan. 17, 2013) (quoting Cornelia v. Schweiker, 728 F.2d 978, 987 (8th Cir. 1984)). Because the statute provides that the award goes to the party, however, and not directly to his attorney, there must also be an "express or implied agreement that the fee award will be paid over to the legal representative.'" Abusamhadaneh, 2013 WL 193778 at *12 (quoting Phillips, 924 F.2d at 1583); see Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 140 (4th Cir. 2009) ("Attorney's fees under the EAJA are payable to the prevailing party, ' not the attorney."); see also Ed A. Wilson, Inc., 126 F.3d at 1409. "What underlies the express or implied agreement that the client will pay over the fee award is the fear that petitioner will retain the attorney fee award as his own." Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 (N.D. Ohio 2008).
Defendant argues that Plaintiff has failed to demonstrate an obligation to remit a fee award to his counsel, and thus he is not entitled to collect a fee award. Def.'s Opp'n 4-5; Abusamhadaneh, 2013 WL 193778 at *12; Phillips, 924 F.2d at 1583; see United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equipment, Inc., 89 F.3d 574, 577 (9th Cir. 1996) ("[W]eighty authority demonstrates that the client himself is not entitled to keep the fees which are measured by and paid on account of the attorneys' services."). Defendant relies upon appointment paperwork filed with the Social Security Administration, which states that Plaintiff's counsel "was [w]aiving fees from any source' and releas[ing] Plaintiff and any auxiliary beneficiaries from any obligations, contractual or otherwise, which may be owed... for services provided in connection with their claim(s) or asserted right(s).'" Id. at 5 (quoting R. at 32). After examining the appointment paperwork, the undersigned is satisfied that Plaintiff's counsel merely selected the only available fee arrangement in the appointment paperwork that allowed the pro bono representation of Plaintiff.
The circumstances surrounding Plaintiff's representation reveal Plaintiff's obligation to remit a fee award to his counsel. Counsel prepared and submitted Plaintiff's motion for attorneys' fees, indicating a continuing attorney-client relationship. See Wasniewski, 549 F.Supp.2d at 971 (finding an implied agreement to pay a fee award to counsel where "[t]he motion for fees was prepared by petitioner's counsel, so there is no possibility that petitioner would receive a fee without counsel's knowledge"). Also, Plaintiff's counsel did not receive compensation from a third party for their representation, so Plaintiff would not need to pay the award to anyone other than his legal representatives. See Phillips, 924 F.2d at 1583 n.5 (stating that a party has not "incurred" fees if he is obligated to pay them to a third party other than his legal representatives). When the plaintiff has a continuing attorney-client relationship and has no obligation to remit fee awards to anyone other than his legal representative, an implied agreement exists "as a matter of law." Id. ; see Abusamhadaneh, 2013 WL 193778 at *12 ("It is axiomatic that an award of attorney[']s fees [under EAJA] is not necessarily contingent upon an obligation to pay counsel.... The presence of an attorney-client relationship suffices to entitle prevailing litigants to receive fee awards.'") (quoting Ed A. Wilson, Inc., 126 F.3d at 1409). Plaintiff has demonstrated the existence of an implied agreement to remit a fee award to his counsel. Plaintiff has therefore incurred fees within the meaning of the EAJA.
B. Plaintiff is Eligible for a Fee Award Under the EAJA
Having found that Plaintiff has incurred fees, the Court must now determine whether he meets the four requirements for eligibility for a fee award under the EAJA: "(1) that the claimant be a prevailing party'; (2) that the Government's position was not substantially justified'; (3) that no special circumstances make an award unjust';" and (4) "that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement." Comm'r v. Jean, 496 U.S. at 158 (quoting 28 U.S.C. § 2412).
1. Plaintiff is a "Prevailing Party"
A plaintiff is the "prevailing party" if he "succeed[s] on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit." Hensley, 461 U.S. at 433; see Omaha Tribe of Neb. v. Swanson, 736 F.2d 1218, 1220-21 (8th Cir. 1984) (applying Hensley 's analysis of "prevailing party" to the EAJA). Plaintiff's Complaint and motion for summary judgment sought either a reversal of the Commissioner's decision and remand for further proceedings, or an immediate award of benefits. The order entered April 2, 2014, reversed the Commissioner's decision to deny Plaintiff benefits, and remanded the case to determine the date of onset of Plaintiff's disability. See Order, ECF No. 23. Plaintiff therefore prevailed on his ...