Krchak v. Astrue

Filing 28

MEMORANDUM OPINION AND ORDER entered, GRANTING 23 Motion for Attorney Fees (EAJA). Plaintiff is AWARDED an EAJA attorney's fee in the amount of $2687.50, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 8/18/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

BRENDA JO KRCHAK

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 10-0482-M

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff’s attorney’s
Application for Attorney Fees Under the Equal Access to Justice
Act (hereinafter EAJA), with supporting Documentation (Doc. 23)
Defendant’s Response (Doc. 24), and Plaintiff’s Reply (Doc. 27).
After consideration of the pertinent pleadings, it is ORDERED
that the Motion be GRANTED and that Plaintiff be AWARDED an EAJA
attorney’s fee in the amount of $2687.50.
Plaintiff filed this action on September 3, 2010 (Doc. 1).
On April 25, 2011, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 21).
Judgment was entered in favor of Plaintiff and against Defendant

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(Doc. 22).
On July 6, 2011, Quinn E. Brock, counsel for Plaintiff,
filed this Application in which he requests a fee of $2718.75,
computed at an hourly rate of $125.00 for 21.75 hours spent in
this Court (Doc. 23).

Defendant opposes an award of attorney’s

fees under EAJA, arguing that the Commissioner’s decision was
substantially justified (Doc. 24).
The EAJA requires a court to

award to a prevailing party . . . fees and
other expenses . . . incurred by that party
in any civil 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).

The EAJA further requires that a

prevailing party file an application for attorney’s fees within
thirty days of final judgment in the action.
2412(d)(1)(B).

28 U.S.C. §

The court’s judgment is final sixty days after

it is entered, which is the time in which an appeal may be taken
pursuant to Rule 4(a) of the Federal Rules of Appellate
Procedure.

See Shalala v. Schaefer, 509 U.S. 292 (1993).

As set out above, there are three statutory conditions

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which must be satisfied before EAJA fees may be awarded under 28
U.S.C. § 2412.
Cir. 1990).

See Myers v. Sullivan, 916 F.2d 659, 666 (11th

First, the claimant must file an application for

fees within the thirty-day period.
a prevailing party.

Second, the claimant must be

Third, the Government’s position must not

be substantially justified.
The Court finds that these three statutory conditions have
been met.

Defendant argues only that the third requirement has

not been met (Doc. 24), but the Court finds, after reconsidering
the reasoning given in the Memorandum Opinion and Order (Doc.
21), that the Government’s position was not substantially
justified.

The Court specifically found that “the ALJ’s

hypothetical questions and the determination rendered [were]
inconsistent with one another” (Doc. 21, p. 7).

The Court can

not find substantial justification for inconsistency.
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
this action.
statute.

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

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.’”

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Watford v. Heckler,

765 F.2d 1562, 1586 (11th Cir. 1985)(EAJA) (quoting Hensley v.
Eckerhartt, 461 U.S. 424, 433 (1983) (§ 1988)).

In describing

this lodestar method of calculation, the United States Supreme
Court stated:

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 section, ‘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 434 (citations omitted).
professional judgment in billing under EAJA.

Counsel must use
A lawyer should

only be compensated for hours spent on activities for which he
would bill a client of means who was seriously intent on

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vindicating similar rights.

Norman v. Housing Authority, 836

F.2d 1292, 1301 (11th Cir. 1988).
Plaintiff’s attorney has indicated that he spent 21.75
hours in prosecuting this action (Doc. 23, Exhibit 2).

After

review, the Court has cut .25 hour off of the .5 hour sought for
reviewing the order setting oral argument.

The Court finds that

Plaintiff’s counsel’s time expended in prosecuting this action
for a total of 21.50 hours is reasonable.
With respect to a determination of the hourly rate to apply
in a given EAJA case, the express language of the Act 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 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, justified a higher
fee.

28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).

Plaintiff’s 21.50

hours, paid at an hourly rate of $125.00, equals $2687.50.

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In reading the application for Attorney’s Fees, it is
unclear to the Court whether Counsel for Plaintiff is requesting
that the money be paid directly to him or whether he is seeking
it on behalf of his client (Doc. 23).

The Government has made

no argument with regard to this issue (Doc. 24).
In any event, as noted earlier, EAJA allows a Court to make
an “award to a prevailing party.”

28 U.S.C. § 2412(d)(1)(A).

In Panola Land Buying Ass’n v. Clark, 844 F.2d 1506, 1509 (11th
Cir. 1988), the Eleventh Circuit Court of Appeals stated that
“[i]t is readily apparent that the party eligible to recover
attorneys’ fees under the EAJA as part of its litigation
expenses is the prevailing party.”

See also Reeves v. Astrue,

526 F.3d 732, 738 (11th Cir. 2008), cert. denied, 129 S.Ct. 724
(2008) (“We conclude the EAJA means what it says:

attorney’s

fees are awarded to the ‘prevailing party,’ not to the
prevailing party’s attorney”).

The United States Supreme Court,

in the unanimous decision of Astrue v. Ratliff, 130 S.Ct. 2521,
2524 (2010), held “that a § 2412(d) fees award is payable to the
litigant and is therefore subject to a Government offset to
satisfy a pre-existing debt that the litigant owes the United
States,” removing any doubt as to whom the award should be paid.
In this action, Krchak has specifically assigned “to any

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EAJA award to the Representative, subject to reimbursement of
the lesser of any fee awarded under EAJA or 42 U.S.C. 406(b)”
(Doc. 23, Exhibit 3, ¶ 5).

However, under the reasoning of

Reeves and Ratliff, the Court finds that the award should be
paid to Krchak and not to her attorney.
In conclusion, it is ORDERED that Plaintiff’s Application
be GRANTED as set out above and that Plaintiff be AWARDED an
EAJA attorney’s fee in the amount of $2687.50.
DONE this 18th day of August, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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