Foster v. Astrue

Filing 25

AMENDED MEMORANDUM OPINION AND ORDER entered. After consideration of the pertinent pleadings, it is ORDERED that the Motion 22 be GRANTED and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $1,937.50 plus court costs of $350.00, a further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 6/12/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
INGRID ARNITA FOSTER,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,1
Defendant.

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CIVIL ACTION 12-0470-M

AMENDED 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. 22).
Though it has been forty-two days since it was filed, Defendant
has not responded or objected to Plaintiff’s Application.

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 $1,937.50 plus court costs of
$350.00.

1

Carolyn W. Colvin became the Commissioner of Social Security on
February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is
substituted for Michael J. Astrue as Defendant in this action. No
further action needs to be taken as a result of this substitution. 42
U.S.C. § 405(g).

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Plaintiff filed this action on July 19, 2012 (Doc. 1).

On

February 20, 2013, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 20).
Judgment was entered in favor of Plaintiff and against Defendant
(Doc. 21).
On April 30, 2013, Quinn E. Brock, counsel for Plaintiff,
filed an Application for Attorney Fees Under the EAJA, in which
he requested a fee of $1,937.50, computed at an hourly rate of
$125.00 for 15.50 hours spent in this Court (Doc. 22).
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
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pursuant to Rule 4(a) of the Federal Rules of Appellate
Procedure.

See Shalala v. Schaefer, 509 U.S. 292 (1993).

As set out above, there are three statutory conditions that
must be satisfied before EAJA fees may be awarded pursuant to 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.
The Court finds that this action was timely filed as it was
filed within thirty days after the time to appeal the judgment
expired (February 20, 2013 through April 30, 2013).

The Court

notes that Plaintiff was the prevailing party in this action
(Docs. 20-21).

This satisfies the first two of the statutory

requirements.
With regard to the 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
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“reasonable basis both in law and fact” for the positions it
took.

Myers, 916 F.2d at 666 (citations omitted).

The Court

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
attorney’s fees.”
omitted).

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.”

Ashburn

v. United States, 740 F.2d 843, 850 (11th Cir. 1984).
Respondent has not filed a response or objected to Foster’s
Application.

As such, the Court finds that the Government has

not established that Foster’s position was not substantially
justified.

Nevertheless, the Court notes that, in the

Memorandum Opinion and Order dated February 20, 2013 (Doc. 20),
the Court found as follows:
The Court first notes that the ALJ
mischaracterized Dr. Perry’s conclusion that
Foster would “miss more than three workdays” a
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month because of her impairments (Tr. 26). The
doctor said that she would miss three days a
month—not more than three days a month (Tr. 401).
The Court also notes that the ALJ did not
acknowledge that Dr. Meyer indicated that
Plaintiff would miss three days a month because
of her impairments; she also gave significant
weight to Dr. Meyer’s opinions (Tr. 26; cf. Tr.
389). While this might seem to be a minor
detail, the Court notes that the Vocational
Expert testified that if Plaintiff had to miss
three days of work a month, she would not be able
to perform any work (Tr. 91). The Court finds
that the ALJ’s conclusions are internally
inconsistent and further finds that the ALJ’s
decision is not supported by substantial
evidence.
(Doc. 20, p. 7).
As set out above, in the Memorandum Opinion and Order, the
Court finds that, based upon a review of the entire record, the
ALJ’s decision was not supported by substantial evidence because
the ALJ mischaracterized some of the medical evidence; this was
relied on by the vocational expert in giving his opinion, an
opinion that was ultimately ignored because of the ALJ’s
mischaracterization of the evidence upon which it relied.
Therefore, the Government’s position was not substantially
justified.
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
this action.

The EAJA, like 42 U.S.C. § 1988, is a fee-shifting
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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
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
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.

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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 15.5 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
fee.
28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).
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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).
Though the Court now allows for a higher hourly rate based on
the ever-increasing cost of living, see Lucy v. Barnhart, Civil
Action 06-0147-C (S.D. Ala. July 5, 2007 (Doc. 32)), Brock is
asking for only $125.00 per hour (Doc. 22).

This rate, $125.00

per hour, times the amount of time worked, 15.5 hours, equals
$1,937.50.
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
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“that a § 2412(d) fees award is payable to the litigant and is
therefore subject to a Government offset to satisfy a preexisting debt that the litigant owes the United States,”
removing any doubt as to whom the award should be paid.

Under

the reasoning of Reeves and Ratliff, the Court finds that the
award should be paid to Plaintiff Ingrid Arnita Foster and not
to her attorney.
Brock also seeks reimbursement of court costs, amounting to
$350.00 (the filing fee) (see Doc. 1).

The Court GRANTS this

request as well.
In conclusion, it is ORDERED that Plaintiff’s Application
(Doc. 22) be GRANTED as set out above and that Plaintiff be
AWARDED an EAJA attorney’s fee in the amount of $1,937.50 and
reimbursement of court costs, amounting to $350.00.
DONE this 12th day of June, 2013.

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

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