Kennedy 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 $1,812.50 under the Equal Access to Justice Act, representing compensation for 14.50 hours of service by Quinn E. Brock, Esquire, at the statutory rate of $125.00 per hour. Signed by Magistrate Judge William E. Cassady on 10/16/2012. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
THERESA MARIE KENNEDY,
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 application for an award of
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc.
22.) 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 $1,812.50 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[.]”); Brown v. Astrue, 271 Fed.Appx.
741, 743 (10th Cir. Mar. 27, 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.”).1
FINDINGS OF FACT
On July 13, 2012 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 application for an award of attorney’s fees and expenses under the
EAJA was filed on October 5, 2012 (Doc. 22), some eighty-four (84) days after entry of
final judgment (compare id. with Doc. 21). In the application, plaintiff requests attorney’s
fees in the amount of $1,812.50 to compensate her attorney for the time (14.50 hours)
spent representing her before this Court as of the date of the filing of the fee application.
(See Doc. 22, Computation of Time Spent.)
The Commissioner of Social Security filed a response to plaintiff’s
application on October 15, 2012, and therein specifically informs the Court that he “is
not opposed to Plaintiff’s motion.” (Doc. 23.)
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 18 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
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 EAJA2 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 July 13, 2012 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
(1993), that is, September 11, 2012. The application in this case, bearing a date of
October 5, 2012 (Doc. 22), is timely since it was filed within thirty (30) days of
September 11, 2012.
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
“[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).
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 of City of Montgomery, 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 analysis.”).
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 reasonableness of the
hours claimed by plaintiff’s attorney (see Doc. 23), the Court finds that plaintiff’s
counsel reasonably spent 14.50 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
was $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. However, 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 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)
Although it is clearly well-known that this Court has adjusted the hourly
rate in social security EAJA cases to account for the increase in the cost of living, since
plaintiff has specifically requested compensation at the statutory rate of $125.00 per
hour for 14.50 hours of work (Doc. 22, at 1) and the defendant has agreed to such an
award of attorney’s fees in this case (Doc. 23), the Court ORDERS that plaintiff be
awarded an attorney’s fee in the amount of $1,812.50 under the EAJA for the 14.50
hours her attorney spent performing work traditionally performed by attorneys in
social security cases.
The Court ORDERS that plaintiff be awarded attorney’s fees in the amount of
$1,812.50 under the Equal Access to Justice Act, representing compensation for 14.50
hours of service by Quinn E. Brock, Esquire, at the statutory rate of $125.00 per hour.
DONE and ORDERED this the 16th day of October, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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