Cousin v. Astrue
MEMORANDUM OPINION AND ORDER entered re 23 Motion for Attorney Fees (EAJA). After consideration of the pertinent pleadings, it is ORDERED that the Motion be GRANTED and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $901.45, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 12/15/2011. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ALMA FAYE COUSIN,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 11-0071-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 (Docs. 2324), and Defendant’s Response (Doc. 25).
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 $901.45.
Plaintiff filed this action on February 8, 2011 (Doc. 1).
On August 29, 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
On November 11, 2011, Colin E. Kemmerly, counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requests a fee of $901.49, computed at an
hourly rate of $180.29 for 5.0 hours spent in this Court (Doc.
Defendant, in his Response filed on November 21, 2011,
stated that he would not oppose the application (Doc. 25).
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.
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
See Shalala v. Schaefer, 509 U.S. 292 (1993).
As set out above, there are three statutory conditions
which must be satisfied before EAJA fees may be awarded under 28
U.S.C. § 2412.
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.
Defendant apparently concedes that Plaintiff became the
prevailing party when the Court remanded this action, Schaefer,
509 U.S. 300-302, and that the fee motion was timely filed.
However, he does not concede that the original administrative
decision denying benefits was not substantially justified (Doc.
With regard to this last condition, in order for Plaintiff
to recover attorney’s fees under the EAJA, the Government must
fail “to establish that its positions were ‘substantially
justified’ or that there exist ‘special circumstances’ which
countenance against the awarding of fees.”
Myers, 916 F.2d at
666 (interpreting and referring to 28 U.S.C. § 2412(d)(1)(A)).
That means that the Government must show that there was a
“reasonable basis both in law and fact” for the positions it
Myers, 916 F.2d at 666 (citations omitted).
notes that “[a]n examination of whether the government’s
position was substantially justified encompasses an evaluation
of both the agency’s preligitation conduct and the subsequent
litigation positions of the Justice Department. . . . Unless the
government can establish that all of its positions were
substantially justified, the claimant is entitled to receive
Myers, 916 F.2d at 666 n.5 (citations
Though Defendant bears the burden of showing that its
position was substantially justified, “[t]he fact that the
government lost its case does not raise a presumption that the
government’s position was not substantially justified.”
v. United States, 740 F.2d 843, 850 (11th Cir. 1984).
In the Memorandum Opinion and Order dated August 29, 2011
(Doc. 21), the Court noted that Defendant had filed an Unopposed
Motion and Memorandum for Entry of Judgment Under Sentence Four
of 42 U.S.C. § 405(g) with Remand of the Cause to the Defendant
which stated as follows:
If the Court grants this motion, the Appeals
Council will direct the [Administrative Law
Judge (hereinafter ALJ)] to evaluate
Plaintiff’s residual functional capacity in
accordance with agency policy, including all
functional limitations supported by the
record, and cite specific evidence
supporting the residual functional capacity
assessment. The ALJ will seek
clarification, as needed, in evaluating
opinion evidence, particularly that of Dr.
Buckmaster, and will not accord any weight
to single decision-maker assessments. The
ALJ will obtain additional medical and
vocational expert testimony, as needed, to
clarify the effect of the claimant’s
functional limitations on her ability to
(Doc. 21, p. 2) (quoting Doc. 17, pp. 1-2).
The Court went on
to note that this was “a tacit admission that Plaintiff’s
application was not appropriately considered” (Doc. 21, p. 2).
The Court now finds that the Government’s position was not
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
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.’”
Watford v. Heckler,
765 F.2d 1562, 1586 (11th Cir. 1985 (EAJA) (quoting Hensley v.
Eckerhartt, 461 U.S. 424, 433 (1983) (§ 1988)).
this lodestar method of calculation, the United States Supreme
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
vindicating similar rights.
Norman v. Housing Authority, 836
F.2d 1292, 1301 (11th Cir. 1988).
The Court, after examination of Plaintiff’s attorneys’
Application and supporting documentation, and after
consideration of the reasonableness of the hours claimed, finds
that Plaintiff’s counsel’s time expended in prosecuting this
action for a total of 5.0 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
28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).
In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 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 $75 per hour, is to determine whether
the court should adjust the hourly fee
upward . . . to take into account an
increase in the cost of living, or a special
Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).1
The applicant bears the burden of producing satisfactory
evidence that the requested rate is in line with prevailing
NAACP V. City of Evergreen, 812 F.2d 1332, 1338
(11th Cir. 1987).
Satisfactory evidence at a minimum is more
than the affidavit of the attorney performing the work.
Stenson, 465 U.S. 886, 895 n.11 (1984).
Where the fees or time
claimed seem expanded or there is lack of documentation or
testimony in support, the court may make an award on its own
Norman v. City of Montgomery, 836 F.2d 1292, 1303
(11th Cir. 1988).
Where the documentation is inadequate, the
court is not relieved of its obligation to award a reasonable
fee, but the court traditionally has had the power to make such
an award without the need of further pleadings or an evidentiary
Since 2001, the prevailing market rate in the Southern
District of Alabama has been $125.00 per hour.
See, e.g., Smith
v. Massanari, Civil Action 00-0812-P-M (S.D. Ala. October 25,
2001); and Square v. Halter, Civil Action 00-0516-BH-L (S.D.
Subsequent to Meyer, the cap was raised from $75.00 per hour to
Ala. April 12, 2001).
However, in 2007, in an action before
Judge Cassady, a formula was approved and used to adjust the
prevailing market hourly rate to account for the ever-increasing
cost of living.
Lucy v. Barnhart, Civil Action 06-0147-C (S.D.
Ala. July 5, 2007 (Doc. 32)).
As set out in Lucy, the formula
to be used in calculating all future awards of attorney’s fees
under the EAJA is:
“‘($125/hour) x (CPI-U Annual Average “All
Items Index,” South Urban, for month and year of temporal
midpoint2)/152.4, where 152.4 equals the CPI-U of March 1996, the
month and year in which the $125 cap was enacted.’”
32, at p. 11) (quoting Lucy, Doc. 31, at p. 2).
also adopts this formula in EAJA fee petition actions for use in
arriving at the appropriate hourly rate.
The temporal midpoint in this action was May 19, 2011, the
complaint having been filed on February 8, 2011 (Doc. 1), and
the Court having entered its Memorandum Opinion and Order and
Judgment on August 29, 2011 (Docs. 21-22).
2011 was 219.820.
The CPI-U for May
Plugging the relevant numbers into the
$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
“The appropriate endpoint for computing the cost of living
adjustment is the temporal midpoint of the period during which the
compensable services were rendered[;] . . . [t]he temporal midpoint is
calculated by computing the number of days from the date the claim
was prepared until the date of the Magistrate or District Judge’s
Order and Judgment.” Lucy v. Barnhart. Civil Action 06-0147-C (S.D.
Ala. Doc. 31, at p. 3).
foregoing formula renders the following equation:
Completion of this equation renders an hourly
rate of $180.29.
This hourly rate for 5.0 hours equals $901.45.
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 $901.45.
DONE this 15th day of December, 2011.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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