Weir v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER entered GRANTING 24 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff be AWARDED an EAJA Attorney's fee in the amount of $3,102.05, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 3/15/2016. (clr)

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

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CIVIL ACTION 15-052-M

MEMORANDUM OPINION AND ORDER
Pending before the Court is Weir’s Attorney’s Application
for Attorney Fees Under the Equal Access to Justice Act
(hereinafter EAJA), with supporting Documentation (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 $3,102.05.
Plaintiff filed this action on February 2, 2015 (Doc. 1).
On November 17, 2015, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner
and remanding this action for further proceedings (Doc. 22).
Judgment was entered in favor of Plaintiff and against Defendant
(Doc. 23).
On February 4, 2016, Byron A. Lassiter, Plaintiff’s
1

Attorney, filed this Application requesting a fee of $3,102.05,
computed at an hourly rate of $190.31 for 16.3 hours spent in
this Court (Doc. 24).

Though more than a month has passed since

this Application was filed, Defendant has not responded.
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).

Three statutory conditions must be satisfied before EAJA
fees may be awarded.
(11th Cir. 1990).

See Myers v. Sullivan, 916 F.2d 659, 666

First, the claimant must file a fee

application within the thirty-day period; also, the claimant
2

must be a prevailing party.

Finally, the Government’s position

must not have been substantially justified.
The Court finds that all three of the statutory
requirements have been met.
The Court will now discuss the fee to be awarded.
a fee-shifting statute.

EAJA is

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)).
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
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In

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 16.3 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
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
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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
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).

1

Blum v.

Where the fees or time

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

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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 documentation is inadequate, the

court is not relieved of its obligation to award a reasonable
fee, but, traditionally, it has 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

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

$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

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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

also adopts this formula in EAJA fee petition actions for use in
arriving at the appropriate hourly rate.
The complaint was filed on February 2, 2015 (Doc. 1) and
the Court entered its Memorandum Opinion and Order and Judgment
on November 17, 2015 (Docs. 22-23), so the temporal midpoint in
this action was June 26, 2015.
232.026.

The CPI-U for June 2015 was

Plugging the relevant numbers into the foregoing

formula renders the following equation:

$125.00 x

232.026/152.4, the computation of which renders an hourly rate
of $190.31.

This hourly rate for 16.3 hours equals $3,102.05.

The Court notes that, in the application for Attorney’s
Fees, Lassiter has attached a “Limited Power of Attorney”
executed by Weir, allowing for checks to be payable directly to
Lassiter (Doc. 24, Exhibit 2).

As noted earlier, EAJA allows a

Court to make an “award to a prevailing party.”
2412(d)(1)(A).

28 U.S.C. §

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

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

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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.
Under the reasoning of Reeves and Ratliff, the Court finds
that the award should be paid to Plaintiff Kelly E. Weir, Jr.
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 $3,102.05.
DONE this 15th day of March, 2016.

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

Order and Judgment.” Lucy v. Barnhart.
Ala. Doc. 31, at p. 3).

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Civil Action 06-0147-C (S.D.