Napier v. Colvin

Filing 34

MEMORANDUM OPINION AND ORDER; plaintiff's motion for attorney fees in granted in the amount of $5,022.81. Signed by Magistrate Judge Katherine P. Nelson on 7/1/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERON NAPIER,

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

Civil Action No. 13-00355-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 application by Plaintiff
Sheron Napier for an award of attorney’s fees under the Equal Access to Justice Act,
28 U.S.C. § 2412 (the “EAJA”) (Doc. 31), filed June 13, 2014, and the Commissioner’s
objection to her application (Doc. 33), filed June 18, 2014.
Upon consideration of all pertinent materials contained in this file, the
application is GRANTED, and it is ORDERED that Plaintiff should receive a
reasonable attorney’s fee in the amount of $5,022.81 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[.]”); cf. 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.”). Accordingly, to the extent the Limited Power of Attorney
attached to the petition (Doc. 31-2) should be construed as an assignment by
Plaintiff of her right to EAJA attorney’s fees to her counsel (see Doc. 31, ¶ 9), it is
disregarded. E.g., Varner v. Astrue, No. 3:09–cv–1026–J–TEM, 2011 WL 2682131,
at *2 (M.D. Fla. July 11, 2011).1
I.
A.

Discussion

Procedural Background

On March 17, 2014, this Court entered a Rule 58 judgment reversing and
remanding this cause to the Commissioner of Social Security pursuant to sentence
“In light of Ratliff, [the best] practice [is] to simply award the EAJA fees
directly to Plaintiff as the prevailing party and remain silent regarding the direction of
payment of those fees. It is not the duty of the Court to determine whether Plaintiff owes a
debt to the government that may be satisfied, in whole or in part, from the EAJA fees award.
The Court leaves it to the discretion of the Commissioner to determine whether to honor
[any] assignment of EAJA fees.” Id.
1

2

four of 42 U.S.C. § 405(g) for further proceedings.
memorandum opinion and order.)

(Doc. 30; see also Doc. 29,

In the application for an award of attorney’s fees

under the EAJA (Doc. 31), filed on June 13, 2014, Plaintiff requests attorney’s fees in
the amount of $5,022.81 to compensate her counsel for the time (27 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 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. 33.)
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
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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]
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
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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).
On appeal to this Court, Plaintiff provided three reasons for why she believes
the Commissioner’s decision to deny her benefits was in error (that is, not supported
by substantial evidence). After a careful review of the record, the Court determined
that Plaintiff’s first reason—that the physical RFC rendered by the ALJ was not
supported by (i.e., linked to) substantial record evidence—alone precluded a finding
that the Commissioner’s decision was supported by substantial evidence and,
accordingly, necessitated remand for that reason alone. Thus, the Court did not
adjudicate, nor was there any reason for the Court to adjudicate, Plaintiff’s second
and third reasons why she believes the Commissioner’s decision was not supported
by substantial evidence.

Quite simply, that conclusion, that the physical RFC

determination was not supported by substantial evidence, also compels a finding
that the Commissioner’s position was not substantially justified.

Compare

Cockerham, 1990 WL 11355, at *3, with Scott, 2003 WL 1524624, at *5.
Commissioner’s
OVERRULED.

objection

based

on

substantial

justification

is

The

accordingly

Further, because the Commissioner makes no argument that
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Plaintiff is not a prevailing party under the EAJA,2 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 17,
2014 Judgment became final, which occurred 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), which was May 16,
2014.

Thirty days from May 16, 2014 was June 15, 2014.

Therefore, the

application filed in this case, bearing a date of June 13, 2014, was timely.
D.

Fees Analysis

The EAJA is a fee-shifting statute. And 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, 1568 (11th Cir. 1985)

(EAJA) (quoting Hensley, 461 U.S. at 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),
“[A] party who wins a sentence-four remand order is a prevailing party.”
Shalala v. Schaefer, 509 U.S. 292, 302 (1993). (See Doc. 30, judgment.)
2

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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.’
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,
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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 Plaintiff’s counsel reasonably spent 27 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
(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
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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).) The temporal midpoint in this case was in November 2013,
the complaint having been prepared and filed on July 11, 2013 (see Doc. 1), and the
Court having entered its memorandum opinion and order and corresponding
judgment on March 17, 2014 (see Docs. 29, 30). The Court takes notice that the
CPI-U for November 2013 was 226.811. See, e.g., Barker v. Astrue, Civil No. 10–
2057, 2011 WL 6033016, at *2 (W.D. Ark. Dec. 5, 2011) (taking judicial notice of the
CPI–U South where the plaintiff's counsel failed to submit evidence of a CPI in
support of his requested hourly rate (citing FED. R. EVID. 201)).
Plugging the relevant numbers into the foregoing formula renders the
following equation: ($125 x 226.811) / 152.4. Completion of this equation renders

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an hourly rate of $186.03. In consideration of the foregoing, Plaintiff should be
awarded an attorney’s fee in the amount of $5,022.81 under the EAJA for the 27
hours her attorneys spent performing work traditionally performed by attorneys in
Social Security cases.
II.

Conclusion

The Court therefore ORDERS that Plaintiff be awarded attorney’s fees in the
amount of $5,022.81 under the Equal Access to Justice Act.

DONE and ORDERED this the 1st day of July, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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