Wright v. Colvin
MEMORANDUM OPINION AND ORDER that plaintiff's application for attorney fees is GRANTED; plaintiff is awarded $1,408.29 in attorney's fees. Signed by Magistrate Judge Katherine P. Nelson on 10/27/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
KENNETH A. WRIGHT,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 14-0465-N
MEMORANDUM OPINION AND ORDER
On October 17, 2016, Plaintiff Kenneth A. Wright (hereinafter, “the Plaintiff”)
filed and served an Application for Attorney Fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412 (“EAJA”) and Memorandum in Support thereof (Docs. 28, 29),
requesting an award of $1,408.29 in attorney’s fees from the Defendant Commissioner
of Social Security. On October 25, 2016, the Commissioner filed and served a response
stating that she does not oppose the motion or the amount requested.
consideration, the Court finds the Plaintiff’s EAJA fee application (Doc. 28) is due to be
“The EAJA provides that the district court ‘shall award to the prevailing party
other than the United States fees and other expenses ... incurred by that party in any
civil action (other than cases sounding in tort), including proceedings for judicial review
By the consent of the parties (see Doc. 18), the Court has designated the undersigned
United States Magistrate Judge to conduct all proceedings and order the entry of judgment
in this civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (See
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.’ ” Newsome v. Shalala, 8 F.3d 775, 777 (11th
Cir. 1993) (quoting 28 U.S.C. § 2412(d)(1)(A)-(B)) (footnotes omitted).
statutory conditions must be satisfied before a district court can award EAJA attorney's
fees. First, the claimant must file an application for fees within thirty days of final
judgment in the action… Second, assuming the fee application was timely filed, the
claimant must qualify as a prevailing party… Finally, if the claimant is a prevailing
party who timely filed an EAJA fee application, then the claimant is entitled to receive
attorney's fees unless the government can establish that its positions were
substantially justified or that there exist special circumstances which countenance
against the awarding of fees.” Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990)
(citation and quotation marks omitted).
“The Equal Access to Justice Act (‘EAJA”’) provides that a ‘party seeking an
award of fees and other expenses shall, within thirty days of final judgment in the
action, submit to the court an application for fees and other expenses....” 28 U.S.C. §
2412(d)(1)(B) (1982). It is settled that a ‘final judgment’ means that the judgment is
final and not appealable. 28 U.S.C. § 2412(d)(2)(G).” United States v. J.H.T., Inc., 872
F.2d 373, 375 (11th Cir. 1989). “[T]his timely filing requirement is jurisdictional in
nature; that is, a claimant's failure to file an EAJA application within thirty days of a
final judgment no longer appealable precludes the district court from considering the
merits of the fee application.” Newsome, 8 F.3d at 777 (citing Myers, 916 F.2d at 672–
Where, as here, “the district court enters a ‘sentence four’ remand order[ under
42 U.S.C. § 405(g)], that judgment is appealable.” Id. at 778. “[W]hen a remand was
pursuant to sentence four, the 30–day filing period for applications for EAJA fees
‘begins after the final judgment (‘affirming, modifying, or reversing’) is entered by the
[district] court and the appeal period has run, so that the judgment is no longer
appealable.’ ” Id. (quoting Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
The Court entered its “sentence four” remand order and judgment on February
26, 2016. (See Docs. 21, 22). Because a United States officer sued in an official capacity
is a party to this action, the time to appeal that judgment expired after sixty (60) days.
See Fed. R. App. P. 4(a)(1)(B), 26(a)(1)(C). However, “[i]f a party timely files in the district
court a [motion to alter or amend] under the Federal Rules of Civil Procedure, the time to file an
appeal runs for all parties from the entry of the order disposing of the last such remaining
motion. See Fed. R. App. P. 4(a)(4)(A)(iv). In this case, the Commissioner timely filed a
Motion to Alter pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc. 23). This
Court denied that motion on August 1, 2016. (Doc. 27). Thus, the judgment became no
longer appealable after September 30, 2016. See Fed. R. App. P. 26(a)(1)(C). Because
the Plaintiff filed her EAJA fee application on October 17, 2016, the application is
timely, and the Court has jurisdiction to consider its merits.
In this action, the Plaintiff won a remand of a final decision of the Commissioner
under sentence four of 42 U.S.C. § 405(g), thus making her a “prevailing party” entitled
to EAJA fees. See Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993). “Courts have
routinely awarded EAJA attorney’s fees to claimants in Social Security cases who
satisfy the statutory conditions.” Newsome, 8 F.3d at 777. See also Myers, 916 F.2d at
666 (“Since the EAJA's enactment, the vast majority of EAJA awards have gone to
claimants who succeeded in challenging contrary benefits decisions made by the
Secretary of Health and Human Services.”).
“Substantially Justified”/Special Circumstances
“The government’s position is substantially justified under the EAJA when it is
justified to a degree that would satisfy a reasonable person—i.e. when it has a
reasonable basis in both law and fact. The government bears the burden of showing
that its position was substantially justified.” United States v. Jones, 125 F.3d 1418,
1425 (11th Cir. 1997) (citations and quotations omitted).
The Commissioner has not attempted to show that her position was
substantially justified and indeed does not oppose an award of EAJA fees to the
Plaintiff. (See Doc. 32). Given the Commissioner’s position, and there being apparent
from the record no special circumstances which countenance against the awarding of
fees, the Court finds that the Plaintiff is entitled to an award of fees under EAJA.
[t]he EAJA further provides:
The amount of fees awarded ... shall be based upon prevailing
market rates, for the kind and quality of services furnished except
(ii) 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, justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A)(ii) (emphasis added).
In Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992), [this Circuit]
recognized a two-step process for determining the appropriate hourly rate
to be applied in calculating attorney's fees under the Act. First, the
district court must “determine the market rate for ‘similar services
[provided] by lawyers of reasonably comparable skills, experience, and
reputation.’ ” Id. (citation omitted). “The second step, which is needed only
if the market rate is greater than [$125] per hour, is to determine 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 103334.
Brungardt v. Comm'r of Soc. Sec., 234 F. App'x 889, 891 (11th Cir. May 9, 2007) (per
The Plaintiff requests an award of fees “based upon an hourly rate of $190.31 per
hour for 7.40 hours of work on this case in federal court.” (Doc. 28 at 2). The Court
finds the number of billed hours (7.40) to be reasonable and finds the requested rate to
be an appropriate market rate for similar services provided by lawyers of reasonably
comparable skills, experience, and reputation.2 Moreover, the upward adjustment is
justified under the formula from this Court’s decision in Lucy v. Astrue, which is often
used to determine prevailing market rates for EAJA applications.
The prevailing market rate for social security cases in the Southern
District of Alabama has been adjusted to take into account an increase in
the cost of living. Lucy v. Astrue, CV 06–147–C, 2007 U.S. Dist. LEXIS
“The court…is itself an expert on the question and may consider its own knowledge and
experience concerning reasonable and proper fees and may form an independent judgment
either with or without the aid of witnesses as to value.” Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (quotation omitted).
97094 (S.D. Ala. July 5, 2007). In Lucy, the following formula, based on
the CPI, was utilized:
($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 *12. The “temporal midpoint” is calculated by counting the number
of days from the date that the claim was filed to the date of the
Magistrate or District Judge's Order and Judgment. Id. at *5–6.
Winters v. Astrue, Civil Action No. 11-00261-CB-B, 2012 WL 1565953, at *2 (S.D. Ala.
Apr. 9, 2012), report and recommendation adopted, 2012 WL 1556652 (S.D. Ala. Apr.
The Complaint in this action was filed on October 6, 2014, and the Court’s
Remand Order and Judgment were entered on February 26, 2016. The number of days
between those two dates is 508; thus the “temporal midpoint” between those two dates
falls in June, 2015. The relevant CPI–U for June 2015 was 232.026. Plugging the
relevant numbers into the foregoing formula renders the following equation: $125 x
232.026 / 152.4. This calculation yields an hourly rate, adjusted for “cost of living”
increases, of $190.31, which the Court finds to be an appropriate hourly rate under
EAJA to take into account increases in cost of living.
Thus, the Court will award attorney’s fees under EAJA in the amount of
$1,408.29 (i.e. $190.31 x 7.4).
In accordance with the foregoing analysis, it is ORDERED and ADJUDGED
Price Index for All Urban Consumers, as determined by the Bureau of Labor
Statistics of the United States Department of Labor (http://www.bls.gov/cpi/tables.htm).
that the Plaintiff’s Application for Attorney Fees under EAJA (Doc. 28) is GRANTED
and that the Plaintiff is awarded from the Defendant Commissioner $1,408.29 in
DONE and ORDERED this the 27th day of October, 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
a party requests one, no separate judgment regarding attorney’s fees shall be
forthcoming. See Fed. R. Civ. P. 58(a)(3) (judgment need not be set out in a separate
document for an order disposing of a motion for attorney’s fees).
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?