United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's Motion for
Attorney Fees under the Equal Access to Justice Act (Doc. 31)
and Plaintiff's Bill of Costs (Doc. 26). Defendant filed
an objection to the Bill of Costs (Doc. 29) and plaintiff
responded (Doc. 37).
parties have agreed that plaintiff is entitled to an award in
the amount of $6, 159.14. (Doc. 36). However, the U.S.
Attorney's Office opposes plaintiff's request of an
additional $400 for the filing fee in her Bill of Costs.
Court finds that plaintiff is the prevailing party and is
entitled to an award of attorney's fees pursuant to the
Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(B).
The Court further finds that the agreed upon amount is
reasonable and appropriate.
Commissioner's objection to plaintiff's request for
the $400 filing fee primarily takes issue with the source of
reimbursement. The Commissioner argues that any cost should
be paid from Social Security's fund rather than the
Judgment Fund. As plaintiff notes, under 28 USCA §
2412(a)(1) she is entitled to reimbursement of costs
regardless of which fund they are paid from.
Commissioner seems to argue that awarding the cost of the
filing fee would be unjust because the U.S. Attorney's
office is a separate and distinct body apart from Social
Security Administration and the U.S. Attorney's Office
had no control over plaintiff's claim prior to this
action. The Commissioner cites 28 U.S.C.A. § 2412
(d)(3). This subparagraph, as plaintiff notes, only governs
adversary adjudication and “agency proceedings to
determine social security benefit allowances are not
adversarial in nature, since the United States is not
represented by counsel.” Cummings v. Sullivan,
950 F.2d 492, 496 (7th Cir. 1991) (citation omitted). The
Commissioner cites no authority to support its claim that the
U.S. Attorney's Office and the Social Security
Administration's relationship should impede
plaintiff's claim for costs.
EAJA does not distinguish between different bodies within the
government, rather “‘United States' includes
any agency and any official of the United States acting in
his or her official capacity.'” 28 U.S.C.A.
§2412(d)(2)(C). Whether the fault is that of the
Administrative Law Judge, the Appeals Council, or the
Commissioner's lawyers in court, the fault lies with the
United States and the United States is liable for costs and
fees. See, e.g., Cummings, 950 F.2d at 496-97
(holding that courts must consider both the pre-litigation
and litigation positions of the United States, regardless of
whether the agent was the Appeals Council prior to litigation
or the Commissioner, through her attorneys, during
case at hand the U.S. Attorney's Office has acted and
represented itself as the Commissioner's representative
before this Court. A member of the U.S. Attorney's Office
for the Southern District of Illinois signed each document
filed by the Commissioner in this case. Claiming that the
U.S. Attorney's Office and the Social Security
Administration are separate and distinct but allowing one
individual to represent both entities simultaneously before
the Court is contradictory.
the Commissioner cites no precedent that the reimbursement of
filing fees is a “special” circumstance and
therefore makes the award of costs unjust. Several cases from
within the Seventh Circuit have allowed for the filing fees
to be paid from the judgment fund pursuant to 31 U.S.C.
§ 1304. Russell v. Astrue, No.
11-CV-0666-MJR-CJP, 2012 WL 4060060, at *1 (S.D. Ill. Sept.
14, 2012); U.S. v. Thouvenot, Wade & Moerschen,
Inc., 596 F.3d 378 (7th Cir. 2010). Cardenas v.
Comm'r of Soc. Sec., No. 4:14-CV-04090-JEH, 2016 WL
900623, at *2 (C.D. Ill. Mar. 9, 2016); Southerland v.
Colvin, No. 114CV01177TWPMJD, 2016 WL 233613, at *1
(S.D. Ind. Jan. 19, 2016).
the Court looks at plaintiff's request for an additional
$774.50 for the time spent replying to the response to the
EAJA motion. Plaintiff's attorney claims he spent an
additional 3.75 hours on the response to the
Commissioner's response to her petition for
attorney's fees. The Court notes that replying to the
Commissioner's response is completely voluntary and not
required for the merits of the motion to be reviewed.
However, plaintiff had to do additional research on the
issues presented within her response to plaintiff's
motion for fees. As a result the Court finds plaintiff's
time spent preparing the reply justified and grants the
reasons discussed above, plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act
(Doc. 31) is GRANTED and the Bill of Costs (Doc. 26) is
Court awards attorney's fees in the amount of $6, 933.64
(eleven thousand three hundred and eight dollars and
thirty-two cents) plus $400 in costs. (The $400 in costs
shall be paid from the Judgment Fund of the United States
amount awarded is payable to plaintiff and is subject to
set-off for any debt owed by plaintiff to the United States,
per Astrue v. Ratliff, 130 S.Ct. 2521 (2010).
However, any amount that is not used to satisfy an