Roberts v. Colvin
MEMORANDUM OPINION AND ORDER GRANTING 24 Motion for Attorney Fees (EAJA). After considering the pertinent pleadings, it is ORDERED that Plaintiff be AWARDED an EAJA attorney's fee in the amount of $3,163.44, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 6/6/2016. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL A. ROBERTS,
CAROLYN W. COLVIN,
Commission of Social Security,
CIVIL ACTION 15-461-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. 24),
and Defendant’s Response (Doc. 26).
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 $3,163.44.
Plaintiff filed this action on September 22, 2015 (Doc. 1).
On March 11, 2016, 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
On May 31, 2016, Plaintiff’s Attorney, filed an EAJA Fee
Application requesting a fee of $3,163.44 computed at an hourly
rate of $188.30 for 16.80 hours spent in this Court (Doc. 24).
Defendant, in her Response filed on June 2, 2016, stated that
she had no objection to the requested fee.
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 requires a prevailing party to
file an application for attorney’s fees within thirty days of
final judgment in the action.
28 U.S.C. § 2412(d)(1)(B).
court’s judgment becomes final sixty days—the time an appeal may
be taken pursuant to Fed.R.App.P. Rule 4(a)—after it is entered.
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 following the entry of
Second, the claimant must be a prevailing
Third, the Government’s position must not be
Defendant apparently concedes all
three EAJA requirements (see Doc. 26).
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
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 (Doc. 24), and considering the
reasonableness of the hours claimed, the Court finds that the
16.8 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
proceedings involved, justified a higher
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 established 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
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
NAACP V. City of Evergreen, 812 F.2d 1332, 1338
(11th Cir. 1987).
Satisfactory evidence at a minimum is more
Subsequent to Meyer, the cap was raised from $75.00 per hour to
$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).
than the affidavit of the attorney performing the work.
Stenson, 465 U.S. 886, 895 n.11 (1984).
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
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; traditionally, it has had the power to make an
award with no need of further pleadings or an evidentiary
Beginning in 2001, the prevailing market rate in the
Southern District of Alabama was $125.00 per hour.
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, United States
Magistrate Judge Cassady fashioned a formula to adjust the
prevailing market hourly rate to account for the ever-increasing
Lucy v. Barnhart, Civil Action 06-0147-C (S.D.
Ala. July 5, 2007 (Doc. 32)).
As set out in Lucy, the formula
for 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).
also adopts this formula in EAJA fee petition actions for use in
arriving at the appropriate hourly rate.
The complaint was filed on September 22, 2015 (Doc. 1) and
the Court entered its Memorandum Opinion and Order and Judgment
on March 11, 2016 (Docs. 22 and 23), so the temporal midpoint in
this action was December 2015.
The CPI-U for December was
Plugging the relevant numbers into the foregoing
formula renders the following equation:
229.581/152.4, the computation of which renders an hourly rate
This hourly rate for 16.8 hours equals $3,163.44.
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. 24).
The Government argues that payment belongs
to the Plaintiff (Doc. 26).
As noted earlier, EAJA allows a Court to make an “award to
“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).
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
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, Plaintiff has authorized the EAJA payment
to be made payable to his counsel on his behalf (Doc. 24).
However, under the reasoning of Reeves and Ratliff, the Court
finds that the award should be paid to Plaintiff and not to his
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 $3,163.44.
DONE this 6th day of June, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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