Lowery v. Commissioner of SSA

E.D. Texas

Lowery v. Commissioner of SSA

DecidedNovember 16, 2022

Docket2:19-cv-00240

StatusUnknown

This text of Lowery v. Commissioner of SSA (Lowery v. Commissioner of SSA) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lowery v. Commissioner of SSA, (E.D. Tex. 2022).

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

SHARON LOWERY, § § Petitioner, § § v. § Case No. 2:19-cv-0240-RSP § COMMISSIONER, SOCIAL SECURITY § ADMINISTRATION, § § Defendant. §

MEMORANDUM ORDER Currently before the Court is the Plaintiff’s Application and Affidavit for Attorney’s Fees Under 28 U.S.C. §2412 The Equal Access to Justice Act (Dkt. No. 15), filed by Petitioner on June 4, 2021. The motion seeks compensation for 20.3 hours at the adjusted statutory rates permitted by the Act, for a total of $3,978.80. The Commissioner has filed no opposition to the requested award of fees. The Equal Access to Justice Act (EAJA), 28 U.S.C. §2412, allows a prevailing party in litigation against the United States, including a petitioner for Social Security benefits, to recover her attorney’s fees “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Id. at §2412 (d)(1)(a). The Supreme Court has explained that “EAJA fees are determined not by a percent of the amount recovered, but by the ‘time expended’ and the attorney’s ‘hourly rate,’” which is statutorily capped. Gisbrecht v. Barnhart, 535 U.S. 789, 794, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). See generally, Murkeldove v. Astrue, 635 F.3d 784, 789 (5th Cir. 2011). The Commissioner does not contend, nor does the Court find, that the position of the government was substantially justified or that any special circumstances exist rendering an award unjust. The Court finds that Petitioner’s requested fee is appropriate. Accordingly, IT IS ORDERED that Defendant will pay Petitioner $3,978.80 in EAJA fees, which amount is in addition to, and not out of, Petitioner’s past due benefits. In accordance with the Supreme Court’s decision in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), this award will be payable to Petitioner, by delivery to her counsel of record. SIGNED this 16th day of November, 2022.

5.2 You 5: Voy UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

SHARON LOWERY, § § Petitioner, § § v. § Case No. 2:19-cv-0240-RSP § COMMISSIONER, SOCIAL SECURITY § ADMINISTRATION, § § Defendant. §

MEMORANDUM ORDER Currently before the Court is the Plaintiff’s Application and Affidavit for Attorney’s Fees Under 28 U.S.C. §2412 The Equal Access to Justice Act (Dkt. No. 15), filed by Petitioner on June 4, 2021. The motion seeks compensation for 20.3 hours at the adjusted statutory rates permitted by the Act, for a total of $3,978.80. The Commissioner has filed no opposition to the requested award of fees. The Equal Access to Justice Act (EAJA), 28 U.S.C. §2412, allows a prevailing party in litigation against the United States, including a petitioner for Social Security benefits, to recover her attorney’s fees “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Id. at §2412 (d)(1)(a). The Supreme Court has explained that “EAJA fees are determined not by a percent of the amount recovered, but by the ‘time expended’ and the attorney’s ‘hourly rate,’” which is statutorily capped. Gisbrecht v. Barnhart, 535 U.S. 789, 794, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). See generally, Murkeldove v. Astrue, 635 F.3d 784, 789 (5th Cir. 2011). The Commissioner does not contend, nor does the Court find, that the position of the government was substantially justified or that any special circumstances exist rendering an award unjust. The Court finds that Petitioner’s requested fee is appropriate. Accordingly, IT IS ORDERED that Defendant will pay Petitioner $3,978.80 in EAJA fees, which amount is in addition to, and not out of, Petitioner’s past due benefits. In accordance with the Supreme Court’s decision in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), this award will be payable to Petitioner, by delivery to her counsel of record. SIGNED this 16th day of November, 2022.

5.2 You 5: Voy UNITED STATES MAGISTRATE JUDGE

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