Thomas v. Astrue

Filing 26

MEMORANDUM OPINION AND ORDER granting 22 Motion for Attorney Fees (EAJA) in the amount of $2,250.00. Signed by Magistrate Judge Katherine P. Nelson on 7/16/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FREDRIA LESAY THOMAS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CA 12-00227-N

MEMORANDUM OPINION AND ORDER
This matter 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 the plaintiff’s application for
an award of attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412
(the “EAJA”) (Doc. 22), filed May 28, 2013, and the Commissioner’s objection to the
application (Doc. 24), filed June 11, 2013.
Upon consideration of all pertinent materials contained in this file, it is
ORDERED that the plaintiff should receive a reasonable attorney’s fee in the
amount of $2,250.00 under the EAJA for legal services rendered by her attorney in
this Court. See Astrue v. Ratliff, --- U.S. ----, 130 S. Ct. 2521, 2526 & 2526-27 (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. App’x 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.”).
I.
A.

Discussion

Procedural Background.

On March 25, 2013, 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, order.)
In the application for an award of attorney’s fees under the EAJA (Doc. 22), filed on
May 28, 2013, the plaintiff requests attorney’s fees in the amount of $2,250.00 to
compensate her attorney for the time (18 hours) spent representing her before this
Court as of the date of the filing of the fee application (see generally id.). And in her
objection to the plaintiff’s application, the Commissioner does not contest the
reasonableness of the requested attorney’s fees; she contends instead that no
attorney’s fees should be awarded in this matter because her position in this case
was substantially justified. (See generally Doc. 23.)
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B.

Substantial Justification and Prevailing Party.

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) (emphasis added).
While “‘[s]ubstantially justified’ is one of the myriad phrases in the law that
has no precise or fixed definition[, t]he Supreme Court has said that it means
‘justified in substance or in the main.’”

Grieves v. Astrue, 600 F. Supp. 2d 995, 999

(N.D. Ill. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see id. (“A
position that is ‘substantially justified’ must have a ‘reasonable basis both in law and
in fact.’”) (quoting Pierce, 487 U.S. at 565); cf. Golembiewski v. Barnhart, 382 F.3d
721, 724 (7th Cir. 2004) (a position is substantially justified if a “reasonable person
could believe the position was correct”).
EAJA decisions necessarily involve exercises of discretion because of
the sheer impracticability of formulating a rule of decision in such
cases. Questions that arise under the Act, like many that arise in
litigation generally, are not amenable to regulation by rule because
they involve multifarious, fleeting, special, narrow facts that utterly
resist generalization—at least, for the time being.
Grieves, 600 F. Supp. 2d at 999 (internal citations and quotation marks omitted and
other modifications to original).
It is also essential to recall that “a position can be justified even though
it is not correct,” Pierce, 487 U.S. at 566, n.2, and “[the government]
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could take a position that is substantially justified, yet lose [on the
merits].” Id. at 569. Analysis of questions of substantial justification
must take into account the government’s position in the underlying
action and the litigation posture it took while defending the validity of
that action in court. 28 U.S.C. § 2412(d)(2)(D). But, substantial
justification should not be confused with the “substantial evidence”
standard that applies to a court’s initial review of the case. Indeed,
the Supreme Court has cautioned that consideration of a fee petition
“‘should not result in a second major litigation.’” Pierce, 487 U.S. at
563. Thus, an EAJA petition requires the court to revisit the legal
and factual circumstances of this case from a different perspective—the
elusive standard of substantial justification—than it did in reviewing
the record on the initial go-round to determine whether there was
substantial evidence to support the conclusion.
Id. at 1000 (internal citations modified and some omitted); but see Cockerham v.
Secretary of Health & Human Servs., CIV.A. No. 87–1276, 1990 WL 11355, at *3
(E.D. La. Jan. 31, 1990) (“[T]he corresponding definition of ‘substantially justified’
used in the EAJA means ‘to be justified in substance or in the main . . . the action
must be justified to a degree that could satisfy a reasonable person, and must have a
reasonable basis in both law and fact.’

Clearly, definitions of the terms ‘substantial

evidence’ and ‘substantially justified’ are analogous; a reasonable mind must
conclude that when the [Commissioner]’s position was not based upon substantial
evidence, it cannot be found substantially justified.”) (quoting Pierce, 487 U.S. at
565); Scott v. Barnhart, No. 99 C 4651, 2003 WL 1524624, at *5 (N.D. Ill. Mar. 21,
2003) (“When a court finds [] a lack of connection between the evidence in the record
and an ALJ’s conclusion, it is appropriate to find the Commissioner’s position not
substantially justified.”) (citations omitted).
Although the plaintiff presented multiple grounds for why the Commissioner’s

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decision to deny benefits was in error, see Thomas v. Colvin, Civil Action No. 12–
227–N, 2013 WL 1218920, at *3 (S.D. Ala. Mar. 25, 2013), the Court remanded this
matter to the Commissioner on “one aspect” of the plaintiff’s challenge “that the ALJ
erred in various ways in evaluating [her] impairments[,]” id. at *9.

As to this

aspect, the Court concluded, in sum, “the ALJ’s credibility determination concerning
drowsiness as a side effect of plaintiff’s medication [was] not supported by
substantial evidence.”

Id. (“[A]t the time [two agency forms] were completed,

plaintiff was taking Depakote for her seizures; thereafter, plaintiff’s physician
prescribed her Keppra.

Thus, the ALJ[’s] conclusion that plaintiff’s failure to

complain of side effects on the agency’s forms indicated that she had no problem with
drowsiness resulting from Depakote, the medication she was on at the time of those
reports, the ALJ’s analysis does not support a similar conclusion concerning possible
side effects from the use of Keppra.

Nor, in light of the significant improvement in

plaintiff’s seizures from the use of Keppra, may the ALJ assume that side effects of
Keppra could be avoided by returning to her prior medication.”). Where a court
“conclude[s] that [a] matter must be remanded because the Court was ‘unable to
determine whether the ALJ’s credibility determination is supported by substantial
evidence of record[,]’” it follows “that [the Commissioner] lacked substantial
justification for his position as [she] had adequate opportunity in [the] case to
perform an analysis consistent with [her] own rules and regulations, but failed to do
so.”

Lee v. Astrue, No. 3:09 CV 1575(CSH), 2011 WL 781108, at *3 (D. Conn. Feb.

28, 2011) (citing underlying remand determination; citations and some internal
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quotation marks omitted); compare id., with Cockerham, 1990 WL 11355, at *3 (“[A]
reasonable mind must conclude that when the [Commissioner]’s position was not
based upon substantial evidence, it cannot be found substantially justified.”). The
Commissioner’s

objection

based

on

substantial

justification

is

accordingly

OVERRULED.
Further, because the Commissioner makes no argument that the plaintiff is
not a prevailing party under the EAJA,1 the Court focuses its attention on other
matters.
C.

Timeliness.

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 the Court’s March 25,
2013 Order/Judgment became final, which will occur at the end of the sixty (60) days
for appeal provided under Rule 4(a)(1)(B)(iii) of the Federal Rules of Appellate
Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302 (1993), that was, May 24, 2013.
Therefore, the application filed in this case, bearing a date of May 28, 2013, was
timely.
D.

Fees Analysis.

Like 42 U.S.C. § 1988, the EAJA is a fee-shifting statute. And the Supreme
Court has indicated that “‘the most useful starting point for determining the amount
“[A] party who wins a sentence-four remand order is a prevailing party.”
Shalala v. Schaefer, 509 U.S. 292, 302 (1993). (See Doc. 24, judgment.)
1

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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 (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 (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 statutory authority.”
Hensley, 461 U.S. at 433-34 (citations omitted); see also id. at 437 (“[T]he fee
applicant bears the burden of establishing entitlement to an award and documenting
the appropriate hours expended and hourly rates.”); ACLU of Ga. 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.’
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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 Auth. 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, 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 Commissioner interposes no objection to the

fee petition, the Court finds that the plaintiff’s counsel reasonably spent ten and
ninety-five/hundredths (10.95) 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
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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
(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] per hour, is to determine
whether the court should adjust the hourly fee upward from $[125] 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).) Here, however, the plaintiff has only requested “an hourly
rate of $125.00 per hour.”

(Doc. 22 at 1.)

In consideration of the foregoing, the plaintiff should be awarded an attorney’s

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fee in the amount of $2,250.00 under the EAJA for the 18 hours her attorney spent
performing work traditionally performed by attorneys in Social Security cases.
II.

Conclusion

The Court therefore ORDERS that the plaintiff be awarded attorney’s fees in
the amount of $2,250.00 under the Equal Access to Justice Act.
DONE and ORDERED this the 16th day of July, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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