Baker v. Colvin
MEMORANDUM OPINION AND ORDER entered GRANTING 19 Motion for Attorney Fees (EAJA). It is ORDERED that Plaintiff be AWARDED an EAJA attorney's fee in the amount of $806.36 and $400 in court costs, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 4/13/2017. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL,
Acting Commissioner of Social
CIVIL ACTION 16-0198-M
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Andrew Baker’s Motion
for Award of Attorney Fees Pursuant to the Equal Access to
Justice Act 28 U.S.C. 2412 (hereinafter EAJA), with supporting
Memorandum (Docs. 19, 20), and Defendant’s Response (Doc. 21).
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 $806.36 and $400 in court costs.1
Plaintiff filed this action on May 9, 2016 (Doc. 1).
January 6, 2017, Judge Granade entered an Order, adopting the
Report and Recommendation that the Commissioner’s decision be
reversed, and remanding this action for further proceedings
On April 12, 2017, consent was filed by the parties (Doc.
23) and on April 13, 2017, Judge Granade referred this action to
the undersigned Magistrate Judge to conduct all further
Judgment was entered in favor of Plaintiff and
against Defendant that same day (Doc. 18).
On March 22, 2017, Laura E. Holland, Plaintiff’s Attorney,
filed a Motion for Award of Attorney’s Fees requesting a fee of
$806.36, computed at an hourly rate of $191.99 for 4.2 hours
spent in this Court; additionally, Holland requests $400 in
court costs (Doc. 19).
Defendant, in her Response filed on
March 31, stated that she had no objection to the requested fee
or request for costs (Doc. 24).
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.
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
proceedings (Doc. 23).
See Shalala v. Schaefer, 509 U.S. 292 (1993).
As set out above, three statutory conditions must be
satisfied before EAJA fees may be awarded.
See Myers v.
Sullivan, 916 F.2d 659, 666 (11th Cir. 1990).
claimant must file a fee application within the thirty-day
period; also, the claimant must be a prevailing party.
the Government’s position must not be substantially justified.
Defendant apparently concedes all three EAJA requirements
(see Doc. 21).
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 Motion, and supporting
documentation, and considering the reasonableness of the hours
claimed, the Court finds that the 4.2 hours Holland spent
prosecuting this action is most reasonable.
In determining the hourly rate to apply in a given EAJA
case, statutory language states 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 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
Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).2
The applicant bears the burden of producing satisfactory
evidence that the requested rate is in line with prevailing
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).
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).
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, but, 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, 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
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
midpoint3)/152.4, where 152.4 equals the CPI-U of March 1996, the
month and year in which the $125 cap was enacted’” (Lucy, Doc.
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 prepared then filed May 9, 2016 (Doc. 19)
and the Court entered its Order and Judgment on January 6, 2017
(Docs. 16-18), so the temporal midpoint in this action was
September 7, 2016.
The CPI-U for September 2016 was 234.069.
Plugging the relevant numbers into the foregoing formula renders
the following equation:
$125.00 x 234.069/152.4, the
computation of which renders an hourly rate of $191.99.
hourly rate for 4.2 hours equals $806.36.
The Court notes that, in the Motion, counsel for Plaintiff
requests that the award of attorney’s fees be paid to her rather
than to Plaintiff (Doc. 19).
The Government agrees to pay
Plaintiff the requested fee and costs (Doc. 21).
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.
Under the reasoning of Reeves
and Ratliff, the Court finds that the award should be paid to
Plaintiff Andrew Baker and not to his Attorney.
The Court further notes that Plaintiff also seeks
reimbursement for the $400.00 filing fee paid when the complaint
was filed (see Doc. 19; see also Docket Sheet Entry for Doc. It
is clear that court costs and expenses are compensable under
Davis v. Apfel, 2000 WL 1658575, *4 (M.D. Fla. August 14,
2000) (“The EAJA also authorizes the award of ‘costs’ and
28 U.S.C. § 2412(a)(1) & ((d)(1)(A).
undisputed that Davis incurred $150.00 in costs in the form of
the filing fee.
She is entitled to recover this amount”); see
also Huitt v. Apfel, 2000 WL 726914, *3 (S.D. Ala. May 25, 2000)
(“[P]laintiff is entitled to court costs of $150.00 and expenses
of litigation in the amount of $56.40” for service of process
and certified mail postage).
Therefore, Plaintiff is entitled
to recover the $400.00 filing fee paid in this action.
filing fee portion and litigation expenses of the EAJA award are
to be reimbursed from the Judgment Fund administered by the
United States Department of Treasury.
See Reeves v. Barnhart,
473 F.Supp.2d 1173, 1174 (M.D. Ala. 2007), aff’d sub nom. Reeves
v. Astrue, 526 F.3d 732 (11th Cir.), cert. denied, 555 U.S. 1072
In conclusion, it is ORDERED that Plaintiff’s Motion be
GRANTED as set out above and that Plaintiff be AWARDED an EAJA
Attorney’s fee in the amount of $806.36 plus $400 in court
DONE this 13th day of April, 2017.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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