United States District Court, Middle District of Pennsylvania
JULIE A. HANDWERK, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
Mehalchick Magistrate Judge
William J. Nealon United States District Judge
On November 25, 2013, Plaintiff, Julie A. Handwerk, filed a complaint seeking review of the Commissioner of the Social Security Administration’s (“Commissioner”) denial of her application for disability insurance benefits and supplemental security income. (Doc. 1). A Report and Recommendation (R&R) was issued by United States Magistrate Judge Karoline Mehalchick on October 24, 2014, recommending that the appeal be granted, the decision of the Commissioner be vacated, and the case be remanded for further proceedings . (Doc. 12). On November 10, 2014, the Undersigned issued a Memorandum and Order, adopting the R&R and effectively granting the appeal and remanding the matter to the Commissioner. (Docs. 15 and 16).
On January 20, 2015, Plaintiff filed a motion for attorney fees and a brief in support pursuant to the Equal Access to Justice Act (“EAJA”). (Docs. 17 and 18). On February 3, 2015, Defendant filed a brief in opposition. (Doc. 19). On February 5, 2015, Plaintiff filed a reply brief. (Doc. 20). This motion is now ripe for review.
Standard of Review
In order to obtain attorney fees under the EAJA, a plaintiff must be the “prevailing party.” See 28 U.S.C. § 2412(d). A “prevailing party” is one who has “achieved some of the benefit sought . . . [in] bringing the suit.” Institutionalized Juveniles v. Sec. of Pub. Wel., 758 F.2d 897, 910 (3d Cir. 1985). In other words, if the court grants an appeal, and vacates the decision of and remands the matter to the Commissioner of the Social Security Administration (“SSA”), the plaintiff is considered to be the “prevailing party.” Kadelski v. Sullivan, 30 F.3d 399, 401, note 2 (3d Cir. 1994).
The motion for attorney fees under the EAJA must be timely filed within thirty (30) days of the court’s entry of final judgment. 28 U.S.C. § 2412(d)(1)(B). However, when the United States or its agency is a party to the action, there are sixty (60) days to file an appeal, and thus a social security appeal judgment does not become final until this sixty (60) day appeal period concludes. Fed. R. App. P. 4(a)(1). Therefore, for a social security appeal, a plaintiff has ninety (90) days to file for a motion for attorney fees. See White v. Barnhart, 2006 U.S. Dist. LEXIS 59387, at *6 (E.D. Pa. Aug. 18, 2006).
If these pre-requisites are met, a plaintiff can recover attorney fees unless the Commissioner’s decision denying benefits was “substantially justified” both in fact and law, and no special circumstances make the fee award unjust. 28 U.S.C. § 2412(d)(2)(D); see Tressler v. Heckler, 748 F.2d 146, 149 (3d Cir. 1984).
The final consideration involves determining the proper amount of attorney fees to award. White, 2006 U.S. Dist. LEXIS 59387 at * 12. Under the EAJA, a plaintiff is entitled to a filing fee reimbursement. 28 U.S.C. § 2412(a)(2). Regarding the attorney’s hourly billing rate, on March 29, 1996, Public Law 103-121 § 232(b)(1) was amended to permit a rate of one hundred twenty-five dollars ($125.00) per billing hour, and provided for an increase in this figure in relation to the cost of living. The United States Court of Appeals for the Third Circuit has approved the use of the Consumer Price Index (“CPI”) to calculate the cost of living adjustment to this baseline hourly billing rate. Dewalt v. Sullivan, 963 F.2d 27, 29 (3d Cir. 1992).
In determining the proper number of hours for an award of attorney fees under the EAJA, the party motioning for attorney fees must:
demonstrate that its request is reasonable and  put forward a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary. However, aside from time allotted for proofreading, it is not reasonable for an attorney to bill for such administrative tasks that can easily be performed by non lawyers.  If the opposing party objects to the number of hours proffered, that party must, through affidavit or brief, provide notice with sufficient specificity to the fee applicant the portion of the fee petition which must be defended. Further, although a district court can decrease the awarded fee based only upon factors raised by the opposing party, the fee award is not automatic and the court retains significant discretion to adjust the fee amount to reflect the objections given its superior understanding of the litigation.
White, 2006 U.S. Dist. LEXIS 59387 at * 14-15 ...