Tyree v. Astrue

Filing 27

MEMORANDUM OPINION AND ORDER entered re 25 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff's Application be GRANTED as set out and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $2,886.72. Signed by Magistrate Judge Bert W. Milling, Jr on 5/29/2012. (clr)

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

APRIL TYREE,

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

CIVIL ACTION 11-0326-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. 25),
and Defendant’s Response to Plaintiff’s Petition for Attorney’s
Fees (Doc. 26).

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 $2,886.72.
Plaintiff filed this action on June 21, 2011 (Doc. 1).

On

February 1, 2012, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 23).
Judgment was entered in favor of Plaintiff and against Defendant
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(Doc. 24).
On April 30, 2012, Byron A. Lassiter, counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requests a fee of $2,886.72, computed at an
hourly rate of $180.42 for sixteen hours spent in this Court
(Doc. 25).

Defendant, in his Response filed on May 14, 2012,

stated that he has no objection to the award amount or to any
particular aspects of the awarding of this fee (Doc. 26).
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).
2

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.
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.

Defendant has conceded all three

Meyers conditions have been met (see Doc. 26).
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.’”

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
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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 (see
Doc. 25 attachment), finds that Plaintiff’s counsel’s time
expended in prosecuting this action for a total of sixteen hours
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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).
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
factor.
5

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
market rates.

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).

Blum v.

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
experience.

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
hearing.

Id.

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.
Ala. April 12, 2001).

However, in 2007, in an action before

1

Subsequent to Meyer, the cap was raised from $75.00 per hour to

6

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).

(Lucy, Doc.

The undersigned

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 October 11, 2011,
the complaint having been filed on June 21, 2011, and the Court
having entered its Memorandum Opinion and Order and Judgment on
February 1, 2012.

The CPI-U for October 11, 2011 was 219.969.

See http://www.bls.gov/ro3/fax_9132.htm.

Plugging the relevant

numbers into the foregoing formula renders the following

$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
2
“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).

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equation:

$125.00 x 219.969/152.4.

renders an hourly rate of $180.42.

Completion of this equation
This hourly rate for sixteen

hours equals $2,886.72.
The Court notes that, in the application for Attorney’s
Fees, counsel for Plaintiff requests that any award of
attorney’s fees be paid to Plaintiff’s attorney on her behalf
(Doc. 25, ¶ 8).

The Government argues that payment should only

go to the Plaintiff (Doc. 26).
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 pre8

existing debt that the litigant owes the United States,”
removing any doubt as to whom the award should be paid.
In this action, Plaintiff has specifically authorized
Lassiter to “[e]ndorse all checks made out to me from the United
States Government regarding any settlement fees and costs
pursuant to the Equal Access to Justice Act (EAJA)” (Doc. Doc.
25 attachment).

Although this is not a specific authorization

for an EAJA check to be made out to Lassiter, under the
reasoning of Reeves and Ratliff, the Court finds that the award
should be paid to Tyree 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 $2,886.72.
DONE this 29th day of May, 2012.

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

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