Clausell v. Astrue
ORDER GRANTING 20 Motion for Attorney Fees (EAJA)and that Plaintiff be awarded a reasonable attorney's fee in the amount of $3,456.00 under the EAJA for legal services rendered by his attorney in this Court, as further set out. Signed by Magistrate Judge Sonja F. Bivins on 11/27/2012. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JAMES C. CLAUSELL,
MICHAEL J. ASTRUE, Commissioner *
of Social Security,
CIVIL ACTION 11-00202-B
This matter is before the Court on Plaintiff's unopposed
Application For Attorney Fees Under the Equal Access to Justice Act
(“EAJA”) and the response of Defendant, the Commissioner of Social
(Docs. 20, 22).
On July 23, 2012, the parties consented
to have the undersigned conduct any and all proceedings in this case.
Thus, this case was referred to the undersigned to conduct
all proceedings in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73.
Upon consideration of the
pertinent pleadings, the undersigned finds that Plaintiff’s motion
is due to be GRANTED, and that Plaintiff is entitled to a reasonable
attorney’s fee award in the amount of $3,456.00 under EAJA for legal
services rendered by his attorney in this Court.
Findings Of Fact
Plaintiff commenced this action on April 25, 2011.
On August 8, 2012, this Court entered an Order reversing and remanding
this cause to the Commissioner of Social Security for further
Judgment was subsequently entered on
November 21, 2012, and made effective, nunc pro tunc, to August 8,
On November 6, 2012, Plaintiff filed the instant Motion for
Attorney’s Fees under the EAJA.1 He seeks an attorney’s fee award
The sum requested represents a total of
19.2 hours, at an hourly rate of $180.00 per hour, for attorney time
spent representing Plaintiff in this Court.
In Defendant’s Response, he advises that he has no objection
requested attorney’s fee award in this case; however,
Defendant asserts that the fees should be awarded directly to
Plaintiff, as opposed to his counsel.3
(Doc. 22 at 1).
One of the requirements for eligibility for an attorney’s fee award
under the EAJA is that the claimant must show that he is a prevailing
party in a non-tort suit involving the United States. 28 U.S.C. §
2412(d)(1)(B). As discussed above, Defendant does not oppose the
award of attorney’s fees in this case, and hence concedes that
Plaintiff was made a “prevailing party” upon entry of the Court’s
Order and Judgment of reversal. (Docs. 18, 23).
Because the Court granted Plaintiff’s motion for leave to proceed
without prepayment of fees and costs (Docs. 2, 3), Plaintiff incurred
no court costs in this action. Thus, only attorney’s fees are being
sought in this case.
The Court agrees with Defendant that, under the EAJA, “attorney’s
fees are awarded to the ‘prevailing party,’ not to the prevailing
party’s attorney.” Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir.
2008); see also Thomas v. Astrue, 2010 U.S. Dist. LEXIS 4657, *3 n.2
(M.D. Ga. January 21, 2010) (“under Eleventh Circuit law, attorney’s
Conclusions Of Law
The U.S. 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) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
See also Jean v. Nelson, 863 F.2d 759, 772-73 (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 (1990).
EAJA Hourly Rate
The EAJA (as amended)4 provides, in relevant part, as
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 . . . attorneys fees shall not be
fees recovered under the EAJA are payable to the prevailing party
plaintiff, not the attorney.”).
On March 29, 1996, the EAJA was amended so as to increase the statutory
cap on EAJA fees from $75.00 per hour to $125.00 per hour. See, e.g,
Winters v. Astrue, 2012 U.S. Dist. LEXIS 59791, *3 n.2 (S.D. Ala.
April 9, 2012). These amendments apply to civil actions commenced
on or after the date of enactment. Id. Therefore, the statutory cap
of $125.00 per hour applies in this present action.
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
28 U.S.C. § 2412(d)(2)(A) (emphasis added).
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 [$125.00] per hour, is to
determine whether the court should adjust the
hourly fee upward from [$125.00] to take into
account an increase in the cost of living, or
a special factor.
Id. at 1033-34 (citations and footnote omitted).
The prevailing market rate for social security cases in the
Southern District of Alabama has been adjusted to take into account
an increase in the cost of living.
LEXIS 97094 (S.D. Ala. July 5, 2007).
Lucy v. Astrue, 2007 U.S. Dist.
In Lucy, the following formula,
based on the CPI, was utilized:
($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 *13-14.
The “temporal midpoint” is calculated by counting the
number of days from the date that the claim was filed to the date
of the Magistrate or District Judge’s Order and Judgment.
Id. at *5-6.
The undersigned finds, based on the Lucy decision, that the
formula utilized by the Court in Lucy is the proper method in this
District for determining the attorney fee rate in cases such as these.
The Complaint in this action was prepared and filed on April 25, 2011,
and the Order and Judgment of the District Judge were issued on August
(Docs. 1, 18, 23).
The number of days between those two
dates is 471, thus making December 16, 2011, the “temporal midpoint”
between those two dates.
The CPI-U for December of 2011 is 219.469.
Plugging the relevant numbers into the foregoing formula renders the
following equation: $125 x 219.469/152.4.
This calculation yields
an hourly rate, adjusted for “cost of living” increases, of $180.00.
Accordingly, based on the formula set forth in Lucy, the undersigned
finds that an hourly rate of $180.00 is appropriate.
Reasonableness of Hours
With regard to the reasonableness of the hours claimed by
Plaintiff’s attorney, “[t]he fee applicant bears the burden of
establishing entitlement and documenting the appropriate hours and
Norman v. Housing Auth. of City of Montgomery, 836
F.2d 1292, 1303 (11th Cir. 1988).
“[T]he 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.”
Id. at 1306.
In the case sub judice, Plaintiff has attached to his motion
a time sheet detailing the description of work performed, the time
expended, and the date on which the work was performed.
The undersigned has reviewed this document, as well as
Defendant’s Response advising of no objection Plaintiff’s requested
circumstances presented, particularly the lack of opposition to the
reasonableness of the hours claimed by Plaintiff’s attorney, the Court
finds that 19.2 hours is a reasonable number of hours for attorney
time expended representing Plaintiff in federal court, and that
Plaintiff’s requested attorney’s fee award ($3,456.00), which sum
is based on 19.2 hours of work performed at a rate of $180.00 per
hour, is reasonable under the circumstances of this case.5
Therefore, upon consideration of the pertinent pleadings, the
undersigned Magistrate Judge finds that Plaintiff’s Application For
Cf. Williams v. Astrue, 2011 U.S. Dist. LEXIS 28381, *3 (M.D. Fla.
2011) (granting plaintiff’s request for attorney’s fees under §
2412(d) of the EAJA, stating, “[i]n light of the lack of opposition,
. . . the Court also finds reasonable the number of hours [19.1] spent
by Plaintiff's counsel on the case.).
Attorneys Fees Under the Equal Access to Justice Act is due to be
GRANTED and that Plaintiff be awarded a reasonable attorney’s fee
in the amount of $3,456.00 under the EAJA for legal services rendered
by his attorney in this Court.
DONE this 27th day of November, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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