Penn v. Colvin
MEMORANDUM OPINION AND ORDER entered re 27 Motion for Attorney Fees (EAJA). It is ORDERED that the Motion be GRANTED and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $3,807.46, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 2/14/2014. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CHARLES E. PENN,
CAROLYN W. COLVIN,
Commission of Social Security,
CIVIL ACTION 13-0082-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. 27),
and Defendant’s Response (Doc. 28).
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 $3,807.46.
Plaintiff filed this action on January 21, 2013 (Doc. 1).
On November 19, 2013, the undersigned Judge1 entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
In spite of Penn’s assertion that the Order and Judgment were
authored by Magistrate Judge Sonja Bivens (Doc. 27, p. 2), the
undersigned Judge entered the Order and Judgment (see Docs. 25-26).
and remanding this action for further proceedings (Doc. 25).
Judgment was entered in favor of Plaintiff and against Defendant
On January 22, 2014, Byron A. Lassiter, counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requests a fee of $3,807.46, computed at an
hourly rate of $186.64 for 20.40 hours spent in this Court (Doc.
Defendant, in her Response filed on February 5, 2014,
poses no objection at all to the requested fee (Doc. 28).
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.
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
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 under 28
U.S.C. § 2412.
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 apparently concedes all three of these statutory
conditions as no objection otherwise has been made (see Doc.
In any event, the Court finds that the three Myers
conditions have been met.
Having reached that decision, the Court will now discuss
the fee to be awarded in this action.
§ 1988, is a fee-shifting statute.
The EAJA, like 42 U.S.C.
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
Watford v. Heckler, 765 F.2d 1562, 1586 (11th Cir. 1985
(EAJA) (quoting Hensley v. Eckerhartt, 461 U.S. 424, 433 (1983)
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 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 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, finds that Plaintiff’s
counsel’s time expended in prosecuting this action for a total
of 20.40 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
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
Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).2
The applicant bears the burden of producing satisfactory
evidence that the requested rate is in line with prevailing
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).
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
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
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.
Subsequent to Meyer, the cap was raised from $75.00 per hour to
Ala. April 12, 2001).
However, in 2007, in an action before
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
midpoint3)/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).
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 July 6, 2013, the
complaint having been filed on February 21, 2013 (Doc. 1), and
the Court having entered its Memorandum Opinion and Order and
Judgment on November 19, 2013 (Docs. 25-26).
2013 was 227.548.
The CPI-U for July
Plugging the relevant numbers into the
$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
“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).
foregoing formula renders the following equation:
Completion of this equation renders an hourly
rate of $186.64.
This hourly rate for 20.40 hours equals
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 Plaintiff’s
behalf (Doc. 27).
The Government argues that payment should
only go to the Plaintiff if Penn “does not owe a debt that is
subject to offset under the Treasury Offset Program” (Doc. 28,
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
See also Reeves v. Astrue, 526 F.3d 732, 738
(11th Cir.), cert. denied, 555 U.S. 1072 (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, 560 U.S. 586, 589 (2010), held “that a §
2412(d) fees award is payable to the litigant and is therefore
subject to a Government offset to satisfy a pre-existing debt
that the litigant owes the United States,” removing any doubt as
to whom the award should be paid.
In this action, the Court finds that the award should be
paid to Plaintiff Charles E. Penn and not to his attorney.
payment, however, may be delivered to Plaintiff’s attorney on
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 $3,807.46.
DONE this 14th day of February, 2014.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?