Dale v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER re 23 Motion for Attorney Fees (EAJA). After consideration of the pertinent pleadings, it is ORDERED that the Motion be GRANTED and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $3,991.89, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 4/13/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JERMESHIA M. DALE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 14-0227-M

MEMORANDUM OPINION AND ORDER
Pending before the Court is Dale’s Attorney’s Application
for Attorney Fees Under the Equal Access to Justice Act
(hereinafter EAJA), with supporting Documentation (Doc. 23), and
Defendant’s Response (Doc. 24).

After considering 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
$3,991.89.
Plaintiff filed this action on May 22, 2014 (Doc. 1).

On

January 6, 2015, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the Commissioner’s decision and
remanding this action for further proceedings (Doc. 21).
Judgment was entered that same date in favor of Plaintiff and
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against Defendant (Doc. 22).
On April 1, 2015, Byron A. Lassiter, Dale’s Attorney, filed
an EAJA Fee Application requesting a fee of $3,991.89, computed
at an hourly rate of $190.09 for twenty-one hours spent in this
Court (Doc. 23).

Defendant, in her Response filed eight days

later, stated that she had no objection to the requested fee,
noting that payment should be made to Plaintiff rather than to
her Attorney (Doc. 24).
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).

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
pursuant to Rule 4(a) of the Federal Rules of Appellate
Procedure.

See Shalala v. Schaefer, 509 U.S. 292 (1993).
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As set out above, three statutory conditions must be
satisfied before EAJA fees may be awarded.

See Myers v.

Sullivan, 916 F.2d 659, 666 (11th Cir. 1990).

First, the

claimant must file a fee application within the thirty-day
period; also, the claimant must be a prevailing party.

Finally,

the Government’s position must not be substantially justified.
Defendant apparently concedes all three EAJA requirements
(see Doc. 24).

The Court finds that they have been met.

Having found the prerequisites satisfied, the Court will
discuss the fee to be awarded.

EAJA is a fee-shifting 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
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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).
After examining Plaintiff’s Attorneys’ Application, and
supporting documentation, and considering the reasonableness of
the hours claimed, the Court finds that the twenty-one hours
expended in prosecuting this action is reasonable.
In determining the hourly rate to apply in a given EAJA
case, express statutory language provides as follows:
The amount of fees awarded under this
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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 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
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

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

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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 thereof, 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, traditionally, it has had the power to make
an award with no need of further pleadings or an evidentiary
hearing.

Id.

Beginning in 2001, the prevailing market rate in the
Southern District of Alabama was $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, U.S. Magistrate Judge

Cassady fashioned a formula 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

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

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calculating all future awards of attorney’s fees under the EAJA
is as follows:

“‘($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.’”
32, at p. 11) (quoting Lucy, Doc. 31, at p. 2).

(Lucy, Doc.

The undersigned

adopts this formula in EAJA fee petition actions for use in
arriving at the appropriate hourly rate.
The complaint was filed on May 22, 2014 (Doc. 1) and the
Court entered its Memorandum Opinion and Order and Judgment on
January 6, 2015 (Docs. 21-22), so the temporal midpoint in this
action was September 13, 2014.
231.762.

The CPI-U for September 2014 was

Plugging the relevant numbers into the foregoing

formula renders the following equation:

$125.00 x

231.762/152.4, the computation of which renders an hourly rate
of $190.09.

This hourly rate for twenty-one hours equals

$3,991.89.
As noted earlier, EAJA allows a Court to make an “award to
a prevailing party.”

28 U.S.C. § 2412(d)(1)(A).

2

In Panola Land

“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.

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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
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, Dale has stated that EAJA checks could be
made directly payable to her Attorney (Doc. 23 Exhibit).
However, under the reasoning of Reeves and Ratliff, the Court
finds that the award should be paid to Plaintiff Jermeshia Dale
and not to her Attorney.
In conclusion, it is ORDERED that Plaintiff’s Application
be GRANTED as set out above and that Plaintiff be AWARDED an

Ala. Doc. 31, at p. 3).

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EAJA Attorney’s fee in the amount of $3,991.89.
DONE this 13th day of April, 2015.

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

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