Caffey v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER that Plaintiff's motion for attorney fees is GRANTED in the amount of $3,520.00. Signed by Magistrate Judge Katherine P. Nelson on 2/6/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JASON A. CAFFEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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CIVIL ACTION NO. 15-00490-N

MEMORANDUM OPINION AND ORDER
On January 25, 2017, Plaintiff Jason A. Caffey (hereinafter, “the Plaintiff”) filed
and served a motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (“EAJA”) and Federal Rule of Civil Procedure 54(d)(2) (Doc. 20), requesting an
award of $3,520.00 in attorney’s fees from the Defendant Commissioner of Social
Security.

The Commissioner filed and served a response stating that she “has no

objection to an award of attorney’s fees in the amount of $3,520.00.”

Upon

consideration, the Court finds the Plaintiff’s motion for attorney’s fees (Doc. 20) is due to
be GRANTED.2
I.

Analysis

“The EAJA provides that the district court ‘shall award to the prevailing party

On notice of the parties (see Doc. 20 at 1 n.1; Doc. 22 at 1 n.1), Nancy A. Berryhill is
substituted for Carolyn W. Colvin as the Acting Commissioner of Social Security
under Federal Rule of Civil Procedure 25(d).

1

With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in this
civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 15, 16).

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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
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).

“[T]hree

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).
A.

Timeliness

“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).”
F.2d 373, 375 (11th Cir. 1989).

United States v. J.H.T., Inc., 872

“[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–

73).
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 October 28,
2016.

(See Docs. 18, 19).

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
from October 28, 2016.

See Fed. R. App. P. 4(a)(1)(B).

Thus, the judgment became no

longer appealable after December 27, 2016, meaning that the Plaintiff had until
January 26, 2017, to file an EAJA motion.

Because the Plaintiff filed his motion on

January 25, 2017, the application is timely, and the Court has jurisdiction to consider its
merits.
B.

Prevailing Party

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.”).3
C.

“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 the Plaintiff’s requested award of EAJA fees.
Doc. 22).

(See

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.
However,
[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
that ...

The Plaintiff’s motion alleges that he “did not have a net worth of two million
dollars at the time this civil action was commenced” (Doc. 20 at 3), and the
Commissioner does not dispute this allegation. Accordingly, the Plaintiff qualifies
as a “party” for purposes of the EAJA. See 28 U.S.C. § 2412(d)(2)(B).

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(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 1033-34.
Brungardt v. Comm'r of Soc. Sec., 234 F. App'x 889, 891 (11th Cir. 2007) (per curiam)
(unpublished).
The Plaintiff requests an award of fees “based upon a rate of $190.27 per hour for
18.50 hours of federal court time.”

(Doc. 20 at 1).

After reviewing the timesheet of

Plaintiff’s counsel (Doc. 20-1), the Court finds the number of billed hours 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.4

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 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).

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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
97094 (S.D. Ala. July 5, 2007). In Lucy, the following formula, based on the
CPI, was utilized:
($125/hour) x (CPI–U[5] 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. 30,
2012).
The Complaint in this action was filed on October 2, 2015, and the Court’s
Remand Order and Judgment were entered on October 28, 2016.

The number of days

between those two dates (i.e. excluding the start and end dates) is 391; thus the
“temporal midpoint” between those two dates falls in April 2016.
for April 2016 was 231.975.

The relevant CPI–U

Plugging the relevant numbers into the foregoing formula

renders the following equation: ($125 x 231.975) / 152.4.

This calculation yields an

hourly rate, adjusted for “cost of living” increases, of $190.27, 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 the Plaintiff attorney’s fees under EAJA in the
amount of $3,520.00.

Consumer 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 (last visited Feb. 3, 2017)).

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II.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the Plaintiff’s
unopposed motion for attorney’s fees (Doc. 20) is GRANTED and that the Plaintiff is
awarded from the Defendant Commissioner of Social Security $3,520.00 in attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.6
DONE and ORDERED this the 6th day of February 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Unless a party requests one by motion, 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).

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