Loper v. Astrue

Filing 25

ORDER entered re 21 Motion for Attorney Fees (EAJA). The Court ORDERS that Plaintiff be awarded attorney's fees in the amount of $695.50 under the Equal Access to Justice Act. Signed by Magistrate Judge William E. Cassady on 5/2/2011. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JACKIE C. LOPER,

:

Plaintiff,

:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 10-0433-C

:
MEMORANDUM OPINION AND ORDER

This cause is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule 54(d)(2)(A)
of the Federal Rules of Civil Procedure, on plaintiff’s motion for an award of attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the “EAJA”). (Doc. 21; see
also Doc. 22). Upon consideration of all pertinent materials contained in this file, it is
determined that Plaintiff should receive a reasonable attorney’s fee in the amount of
$695.50 under the EAJA for legal services rendered by her attorney in this Court. See
Astrue v. Ratliff, ___ U.S. ____, 130 S. Ct. 2521, 2526 & 2526-27 (2010) (“Ratliff [] asserts
that subsection (d)(1)(A)’s use of the verb ‘award’ renders § 2412(d) fees payable
directly to a prevailing party’s attorney[.] . . . We disagree. . . . The plain meaning of the
word ‘award’ in subsection (d)(1)(A) is [] that the court shall ‘give or assign by . . .
judicial determination’ to the ‘prevailing party’ (here, Ratliff’s client Ree) attorney’s fees
in the amount sought and substantiated under, inter alia, subsection (d)(1)(B). . . . The
fact that the statute awards to the prevailing party fees in which her attorney may have

a beneficial interest or a contractual right does not establish that the statute ‘awards’ the
fees directly to the attorney. For the reasons we have explained, the statute’s plain text
does the opposite—it ‘awards’ the fees to the litigant[.]”); see also Brown v. Astrue, 271
Fed. App’x 741, 743 (10th Cir. 2008) (“The district court correctly held that Mr. Brown’s
assignment of his right in the fees award to counsel does not overcome the clear EAJA
mandate that the award is to him as the prevailing party, and the fees belong to him.
Thus, the district court correctly declined to award the fees directly to counsel.”).
FINDINGS OF FACT
1.

On February 4, 2011 this Court entered a Rule 58 judgment reversing and

remanding this cause to the Commissioner of Social Security pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings. (Doc. 20; see also Doc. 19.)
2.

The motion for an award of attorney’s fees under the EAJA was filed on

April 18, 2011 (Doc. 21; see also Doc. 22). In the motion, plaintiff requests attorney’s fees
in the amount of $695.50 to compensate her attorney for the time (four hours) spent
representing her before this Court as of the date of the filing of the fee application. (See
Doc. 21 at 2.)
3.

The Commissioner of Social Security filed his response to plaintiff’s EAJA

application on April 26, 2011 and therein advises the Court that he is not opposed to
plaintiff’s motion. (See Doc. 24.)
CONCLUSIONS OF LAW
1.

The Equal Access to Justice Act requires a district court to “award to a

prevailing party . . . fees and other expenses . . . incurred by that party in any civil
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action . . . , including proceedings for judicial review of agency action, brought by or
against the United States . . . , 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). It is imminently clear in this case that plaintiff is a prevailing
party under the EAJA,1 and that the position of the United States in this case was not
substantially justified, the defendant having made no arguments to the contrary. (See
Doc. 24.)
2.

The EAJA requires a prevailing party to file an application for attorney’s

fees within thirty (30) days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B).
The thirty-day clock did not begin to run in this case until the Court’s reversal and
remand order of February 4, 2011 becomes final, which will occur at the end of the sixty
(60) days for appeal provided under Rule 4(a)(1) of the Federal Rules of Appellate
Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302 (1993), that is, May 5, 2011. Thus, the
motion filed in this case, bearing a date of April 18, 2011, is timely.
3.

The EAJA, like 42 U.S.C. § 1988, is a fee-shifting statute. The Supreme

Court has indicated that “‘the most useful starting point for determining the amount of
a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.’” Watford v. Heckler, 765 F.2d 1562, 1568 (11th
Cir. 1985) (EAJA) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)(§ 1988)); see Jean

“[A] party who wins a sentence-four remand order is a prevailing party.” Shalala v.
Schaefer, 509 U.S. 292, 302 (1993).
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v. Nelson, 863 F.2d 759, 772-773 (11th Cir. 1988) (discussing the reasonableness of the
hours expended in the context of contentions by the government that the fee requests
were not supported by sufficient documentation and often involved a duplication of
effort), aff'd sub nom. Comm’r, I.N.S. v. Jean, 496 U.S. 154 (1990).
This calculation provides an objective basis on which to make an initial
estimate of the value of a lawyer’s services. The party seeking an award
of fees should submit evidence supporting the hours worked and the rates
claimed. Where the documentation of hours is inadequate, the district
court may reduce the award accordingly. The district court also should
exclude from this initial fee calculation hours that were not “reasonably
expended.” . . . Cases may be overstaffed, and the skill and experience of
lawyers vary widely. Counsel for the prevailing party should make a
good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee submission. “In
the private sector, ‘billing judgment’ is an important component in fee
setting. It is no less important here. Hours that are not properly billed to
one’s client also are not properly billed to one’s adversary pursuant to
statutory authority.”
Hensley, 461 U.S. at 433-434 (citations omitted); see also id., at 437 (“[T]he fee applicant
bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.”); ACLU of Ga. v. Barnes, 168 F.3d 423,
428 (11th Cir. 1999) (“If fee applicants do not exercise billing judgment, courts are
obligated to do it for them, to cut the amount of hours for which payment is sought,
pruning out those that are ‘excessive, redundant, or otherwise unnecessary.’ Courts are
not authorized to be generous with the money of others, and it is as much the duty of
courts to see that excessive fees and expenses are not awarded as it is to see that an
adequate amount is awarded.”); Norman v. Hous. Auth., 836 F.2d 1292, 1301 (11th Cir.
1988) (“Excluding excessive or otherwise unnecessary hours under the rubric of ‘billing
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judgment’ means that a lawyer may not be compensated for hours spent on activities
for which he would not bill a client of means who was seriously intent on vindicating
similar rights, recognizing that in the private sector the economically rational person
engages in some cost benefit analysis.”).
4.

In Norman, the Eleventh Circuit indicated that “the measure of reasonable

hours is determined by the profession’s judgment of the time that may be conscionably
billed and not the least time in which it might theoretically have been done.” 836 F.2d
at 1306.
5.

Because the Commissioner does not oppose the fee petition, the Court

finds that plaintiff’s counsel reasonably spent four hours on legal tasks in this case.
6.

With respect to a determination of the hourly rate to apply in a given

EAJA case, for services performed by attorneys, the express language of the Act, as
amended by the Contract with America Advancement Act of 1996, provides in
pertinent part as follows:
The amount of fees awarded under this subsection shall be based upon
prevailing market rates for the kind and quality of the services furnished,
except that . . . attorney fees shall not be awarded in excess of $125.00 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 the
proceedings involved, justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A) (Cum. Supp. 1997).
7.

In Meyer v. Sullivan, 958 F.2d 1029 (1992), the Eleventh Circuit determined

that the EAJA establishes a two-step analysis for determining the appropriate hourly
rate to be applied in calculating attorney's fees under the Act.
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The first step in the analysis, . . . is to determine the market rate for
“similar services [provided] by lawyers of reasonably comparable skills,
experience, and reputation.” . . . The second step, which is needed only if
the market rate is greater than $[125] per hour, is to determine whether
the court should adjust the hourly fee upward from $[125] to take into
account an increase in the cost of living, or a special factor.
Id. at 1033-1034 (citations and footnote omitted).
8.

For years, the prevailing market rate in the Southern District of Alabama

has been $125.00 per hour. See, e.g., Willits v. Massanari, CA 00-0530-RV-C; Boggs v.
Massanari, 00-0408-P-C; Boone v. Apfel, CA 99-0965-CB-L. This Court has adjusted that
rate to account for the increase in the cost of living. Lucy v. Barnhart, CA 06-0147-C,
Doc. 32. More specifically, the Court has adopted the following formula to be used in
calculating all future awards of attorney’s fees under the EAJA: “‘($125/hour) x (CPI-U
Annual Average “All Items Index,” South Urban, for month and year of temporal
midpoint )/ 152.4, where 152.4 equals the CPI-U of March 1996, the month and year in
which the $125 cap was enacted.’” (Id. at 11 (quoting Doc. 31 at 2).)
9.

The temporal midpoint in this case was November, 2010, the complaint

having been prepared and filed on August 9, 2010 (Doc. 1) and the Court having
entered its order and judgment on February 4, 2010 (Docs. 19 & 20). The CPI-U for
November, 2010 was 211.99. Plugging the relevant numbers into the foregoing formula
renders the following equation: ($125 x 211.99) / 152.4. Completion of this equation
renders an hourly rate of $173.87.

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10.

In consideration of the foregoing, plaintiff should be awarded an

attorney’s fee in the amount of $695.50 under the EAJA for the four hours her attorney
spent performing work traditionally performed by attorneys in social security cases.
CONCLUSION
The Court ORDERS that Plaintiff be awarded attorney’s fees in the amount of
$695.50 under the Equal Access to Justice Act.
DONE and ORDERED this the 2nd day of May, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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