Nolan v. Colvin
MEMORANDUM OPINION AND ORDER that plaintiff be awarded attorney's fees in the amount of $3,594.33 under EAJA. Signed by Magistrate Judge William E. Cassady on 5/30/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, :
MEMORANDUM OPINION AND ORDER
This cause is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule 54(d)(2)(A)
of the Federal Rules of Civil Procedure, on plaintiff’s application for an award of
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc.
25). Upon consideration of all pertinent materials contained in this file, it is determined
that plaintiff should receive a reasonable attorney’s fee in the amount of $3,594.33 under
the EAJA for legal services rendered by her attorney in this Court, see Astrue v. Ratliff,
560 U.S. 586, 592 & 593, 130 S. Ct. 2521, 2526 & 2526-2527, 177 L. Ed. 2d 91 (2010)
(“Ratliff  asserts that subsection (d)(1)(A)’s use of the verb ‘award’ renders § 2412(d)
fees payable directly to a prevailing party’s attorney[.] . . . We disagree. . . . The plain
meaning of the word ‘award’ in subsection (d)(1)(A) is  that the court shall ‘give or
assign by . . . judicial determination’ to the ‘prevailing party’ (here, Ratliff’s client Kills
Ree) attorney’s fees in the amount sought and substantiated under, inter alia, subsection
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to
Rule 25(d), FED. R. CIV. P., Berryhill is substituted for Carolyn W. Colvin as the proper defendant in this
(d)(1)(B). . . . The fact that the statute awards to the prevailing party fees in which her
attorney may have a beneficial interest or a contractual right does not establish that the
statute ‘awards’ the fees directly to the attorney. For the reasons we have explained, the
statute’s plain text does the opposite-it ‘awards’ the fees to the litigant[.]”); Brown v.
Astrue, 271 F. App’x 741, 743 (10th Cir. Mar. 27, 2008) (“The district court correctly held
that Mr. Brown’s assignment of his right in the fees award to counsel does not
overcome the clear EAJA mandate that the award is to him as the prevailing party, and
the fees belong to him. Thus, the district court correctly declined to award the fees
directly to counsel.”).2
FINDINGS OF FACT
On March 15, 2017, this Court entered a Rule 58 judgment reversing and
remanding this cause to the Commissioner of Social Security pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings. (Doc. 24; see also Doc. 23). The application
for an award of attorney’s fees and expenses under the EAJA was filed on May 11, 2017,
(Doc. 25), fifty-seven (57) days after entry of final judgment (compare id. with Doc. 24). In
the application, plaintiff requests attorney’s fees in the amount of $3,594.33 to
compensate her attorney for the time (18.7 hours) spent representing her before this
Court as of the date of the filing of the fee application (see Doc. 25-2).
Commissioner of Social Security filed a response to plaintiff’s motion on May 25, 2017,
and therein states that she will pay Ms. Nolan the requested $3,594.33 and deliver that
amount to plaintiff’s attorney provided it is determined that plaintiff “does not owe a
Any appeal taken from this memorandum opinion and order and judgment shall be made to the
Eleventh Circuit Court of Appeals. (See Docs. 20 & 22 (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for this judicial circuit in
the same manner as an appeal from any other judgment of this district court.”).)
debt that is subject to offset under the Treasury Offset Program[.]” (Doc. 27, at 1; see also
id. at 2 (“If there is such a debt, any fee remaining after offset will be payable to Plaintiff
and delivered to Plaintiff’s attorney.”).)
CONCLUSIONS OF LAW
The Equal Access to Justice Act requires a district 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). It is imminently clear in this case that plaintiff is a prevailing party
under the EAJA3 and that the position of the United States in this case was not
substantially justified, as the government has not argued otherwise in her response (see
The EAJA requires a prevailing party to file an application for attorney’s fees
within thirty (30) days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B). The
thirty-day clock did not begin to run in this case until this Court’s reversal and remand
order of March 15, 2017, became final, which occurred at the end of the sixty (60) days
for appeal provided under Rule 4(a)(1) of the Federal Rules of Appellate Procedure, see
Shalala v. Schaefer, 509 U.S. 292, 302, 113 S. Ct. 2625, 2632, 125 L. Ed. 2d 239 (1993), that is,
May 15, 2017 . The application filed in this case, (Doc. 25), bearing a date of May 11,
“[A] party who wins a sentence-four remand order is a prevailing party.” Shalala v. Schaefer, 509 U.S.
292, 302, 113 S. Ct. 2625, 2632, 125 L. Ed. 2d 239 (1993).
Sixty (60) days from the March 15, 2017, is May 14, 2017, a Sunday. Therefore, the period began to run
until the end of the next day, May 15, 2017. See FED. R. CIV. P. 6(a)(1)(C) (“(a) Computing Time. The
following rules apply in computing any time period specified in these rules . . . . (1)Period Stated in Days
or a Longer Unit. When the period is stated in days or a longer unit of time: . . . (C) include the last day of
2017, was premature since it was filed before the sixty (60) days period ran, which the
Court finds harmless since a notice of appeal to the memorandum opinion and order
and judgment was not filed, (see Docket Report).
The EAJA, like 42 U.S.C. § 1988, 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, 1568 (11th Cir. 1985)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40
(1983)); see also Jean v. Nelson, 863 F.2d 759, 772-73 (11th Cir. 1988) (discussing the
reasonableness of the hours expended in the context of contentions by the government
that the fee requests were not supported by sufficient documentation and often
involved a duplication of effort), aff'd sub nom. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 110 S.
Ct. 2316, 110 L. Ed. 2d 134 (1990).
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
the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the
end of the next day that is not a Saturday, Sunday, or legal holiday.”).
Hensley, supra, 461 U.S. at 433-34, 103 S. Ct. at 1939-40 (citations omitted); see also id., at
437, 103 S. Ct. at 1941 (“[T]he fee applicant bears the burden of establishing entitlement
to an award and documenting the appropriate hours expended and hourly rates.”);
ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (“If fee applicants do not
exercise billing judgment, courts are obligated to do it for them, to cut the amount of
hours for which payment is sought, pruning out those that are ‘excessive, redundant, or
otherwise unnecessary.’ Courts are not authorized to be generous with the money of
others, and it is as much the duty of courts to see that excessive fees and expenses are
not awarded as it is to see that an adequate amount is awarded.”); Norman v. Hous.
Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988) (“Excluding excessive or
otherwise unnecessary hours under the rubric of ‘billing judgment’ means that a lawyer
may not be compensated for hours spent on activities for which he would not bill a
client of means who was seriously intent on vindicating similar rights, recognizing that
in the private sector the economically rational person engages in some cost benefit
In Norman, supra, the Eleventh Circuit indicated, “the measure of reasonable
hours is determined by the profession’s judgment of the time that may be conscionably
billed and not the least time in which it might theoretically have been done.” 836 F.2d
Because the defendant has interposed no objection to the attorney hours
claimed in plaintiff’s EAJA application, the Court finds that plaintiff’s counsel
reasonably spent 18.70 hours on legal tasks in this case.
With respect to a determination of the hourly rate to apply in a given EAJA case,
for services performed by attorneys, the express language of the Act, as amended by the
Contract with America Advancement Act of 1996, provides in pertinent part 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 $125.00 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) (Cum. Supp. 1997).
In Meyer v. Sullivan, 958 F.2d 1029 (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 $ per hour, is to determine whether
the court should adjust the hourly fee upward from $ to take into
account an increase in the cost of living, or a special factor.
Id. at 1033-34 (citations and footnote omitted).
For years, the prevailing market rate in the Southern District of Alabama was
$125.00 per hour. See, e.g., Willits v. Massanari, CA 00-0530-RV-C; Boggs v. Massanari, 000408-P-C; Boone v. Apfel, CA 99-0965-CB-L. However, this Court has adjusted that rate
to account for the increase in the cost of living. Lucy v. Barnhart, CA 06-0147-C, Doc. 32.
More specifically, the Court has adopted the following formula to be used in calculating
all future awards of attorney’s fees under the EAJA: “‘($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 11, quoting Doc. 31, at 2)
The temporal midpoint in this case was October 8, 2016, the complaint having
been prepared and filed on May 3, 2016, (compare Doc. 25-2 with Doc. 1), and the Court
having entered its order and judgment on March 15, 2017, (Docs. 23-24). The CPI-U for
October of 2016 was 234.337. Plugging the relevant numbers into the foregoing formula
renders the following equation: $125x234.337/152.4.
Completion of this equation
renders an hourly rate of $192.21.
In consideration of the foregoing, the plaintiff is to be awarded an attorney’s fee
in the amount of $3,594.33 under the EAJA for the 18.70 hours her attorney spent
performing work traditionally performed by attorneys in social security cases.
The Court ORDERS that plaintiff be awarded attorney’s fees in the amount of
$3,594.33 under the Equal Access to Justice Act, representing compensation for 18.70
hours of service by William T. Coplin, Jr., Esquire, at the cost-of-living-adjusted rate of
DONE and ORDERED this the 30th day of May 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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