McDonnell v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered GRANTING 19 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff be AWARDED and EAJA Attorney's fee in the amount of $3,901.15, as more fully set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 2/10/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
OWEN E. McDONNELL, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 14-0141-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.
199), and Defendant’s Response to Plaintiff’s Application for
Attorney Fees (Doc. 20).

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
$3,901.15.
Plaintiff filed this action on March 25, 2014 (Doc. 1).
October 8, the undersigned Judge entered a Memorandum Opinion
and Order, reversing the decision of the Commissioner, and
remanding this action for further proceedings (Doc. 17).
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On

Judgment was entered in favor of Plaintiff and against Defendant
on that same day (Doc. 18).
On December 16, 2014, Byron A. Lassiter, Counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requested a fee of $3,901.15, computed at an
hourly rate of $190.30 for 20.5 hours spent in this Court (Doc.
19).

Defendant, in her Response filed on December 29, stated

that she had no objection to the award of fees, but noted that
payment should be made to Plaintiff rather than to his Attorney
(Doc. 20).
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
2

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 under 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.
Defendant apparently concedes that Plaintiff became the
prevailing party when the Court remanded this action, Schaefer,
509 U.S. 300-302, that the fee motion was timely filed, and that
the original administrative decision denying benefits was not
substantially justified (Doc. 20).
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
this action.
statute.

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

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.
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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 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
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F.2d 1292, 1301 (11th Cir. 1988).
The Court, after examination of Plaintiff’s Attorney’s
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 20.5 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).
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
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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
factor.
Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).1
The applicant bears the burden of producing satisfactory
evidence that the requested rate is in line with prevailing
market rates.

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).

Blum v.

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
experience.

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
hearing.

1

Id.

Subsequent to Meyer, the cap was raised from $75.00 per hour to

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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).

However, in 2007, in an action before

U.S. Magistrate 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 midpoint2)/152.4, where 152.4 equals the CPI-U
of March 1996, the month and year in which the $125 cap was
enacted.’”
p. 2).

(Lucy, Doc. 32, at p. 11) (quoting Lucy, Doc. 31, at

The undersigned also adopts this formula in EAJA fee

petition actions for use in arriving at the appropriate hourly
rate.

$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
2
“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).

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The temporal midpoint in this action was July 2, 2014, the
complaint having been filed on March 25, 2014 (Doc. 1), and the
Court having entered its Memorandum Opinion and Order and
Judgment on October 8, 2014 (Docs. 17-18).
2014 was 232.013.

The CPI-U for July

Plugging the relevant numbers into the

foregoing formula renders the following equation:
232.013/152.4.

$125.00 x

Completion of this equation renders an hourly

rate of $190.30.

This hourly rate for 20.5 hours equals

$3,901.15.
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 rather than to
Plaintiff (Doc. 19).

The Government argues that payment should

only go to the Plaintiff (Doc. 20).
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.), cert. denied, 555 U.S. 1072 (2008) (“We conclude the
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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, McDonnell has specifically given Lassiter a
limited power of attorney to receive checks on his behalf (Doc.
19, Exhibit 2).

Nevertheless, under the reasoning of Reeves and

Ratliff, the Court finds that the award should be paid to
Plaintiff and not to his Attorney.
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 $3,901.15.
DONE this 10th day of February, 2015.

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

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