Orange v. Astrue
MEMORANDUM OPINION AND ORDER entered re 22 Motion for Attorney Fees (EAJA). The Court ORDERS that plaintiff be awarded attorney's fees in the amount of $525.57 under the Equal Access to Justice Act, representing compensation for three (3) hours of service by Colin E. Kemmerly, Esquire, at the cost-of-living-adjusted rate of $175.19 an hour, as further set out. Signed by Magistrate Judge William E. Cassady on 7/1/2011. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
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 (“EAJA”), 28 U.S.C. § 2412. (Doc. 22; see also
Doc. 23.) 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
$525.57 under the EAJA for legal services rendered by her attorney in this Court. See
Astrue v. Ratliff, 505 U.S.
, 130 S.Ct. 2521, 2526 & 2526-2527, 177 L.Ed.2d 91 (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.Appx. 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
On April 1, 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. 21; see also Doc. 20.)
The motion for an award of attorney’s fees under the EAJA was filed on
June 14, 2011 (Docs. 22-23), some seventy-four (74) days after entry of final judgment
(compare id. with Doc. 21). In the motion, plaintiff requests attorney’s fees in the amount
of $525.56 to compensate her attorney for the time (3 hours) spent representing her
before this Court as of the date of the filing of the fee application. (See Doc. 22, Time
The Commissioner of Social Security filed a response to plaintiff’s motion
and therein notes only that the award of EAJA fees should be made to plaintiff. (Doc.
25.) As heretofore indicated, the award of fees is to plaintiff under the EAJA, not her
CONCLUSIONS OF LAW
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
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
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 this Court’s reversal and
remand order of April 1, 2011 became final, which occurred 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, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239
“[A] party who wins a sentence-four remand order is a prevailing party.” Shalala v.
Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993).
(1993), that is, May 31, 2011. The motion filed in this case, bearing a date of June 14,
2011, is timely since it was filed within thirty days of May 31, 2011.
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, 103 S.Ct. 1933, 1939, 76
L.Ed.2d 40 (1983)(§ 1988); see Jean 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. Commissioner, I.N.S. v. Jean, 496
U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (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
Hensley, supra, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940 (citations omitted); see also id.,
at 437, 103 S.Ct. at 1941 (“[T]he fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours expended and hourly
rates.”); ACLU of Georgia 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. Housing Authority, 836 F.2d 1292, 1301 (11th Cir. 1988) (“Excluding excessive or
otherwise unnecessary hours under the rubric of ‘billing 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
In Norman, supra, 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.
Because the defendant interposes no objection to the fee petition in this
regard, the Court finds that plaintiff’s counsel reasonably spent three (3) hours on legal
tasks in this case.
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).
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.
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 $ per hour, is to determine whether
the court should adjust the hourly fee upward from $ to take into
account an increase in the cost of living, or a special factor.
Id. at 1033-1034 (citations and footnote omitted).
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)
The temporal midpoint in this case was January 5, 2011, the complaint
having been prepared and filed on October 12, 2010 (Doc. 1) and the Court having
entered its order and judgment on April 1, 2011 (Docs. 20-21). The CPI-U for January of
2011 was 213.589. Plugging the relevant numbers into the foregoing formula renders the
following equation: $125x213.589/152.4. Completion of this equation renders an hourly
rate of $175.19.
In consideration of the foregoing, the plaintiff is to be awarded an
attorney’s fee in the amount of $525.57 under the EAJA for the three (3) hours her
attorney spent performing work traditionally performed by attorneys in social security
The Court ORDERS that plaintiff be awarded attorney’s fees in the amount of
$525.57 under the Equal Access to Justice Act, representing compensation for three (3)
hours of service by Colin E. Kemmerly, Esquire, at the cost-of-living-adjusted rate of
$175.19 an hour.
DONE and ORDERED this the 1st day of July, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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