Redd v. Colvin
MEMORANDUM OPINION AND ORDER that plaintiff's application for attorney fees under EAJA is GRANTED; plaintiff is awarded $863.78 in attorney's fees and $400.00 for the filing fee. Signed by Magistrate Judge Katherine P. Nelson on 4/21/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JAMES E. REDD,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 16-0425-N
MEMORANDUM OPINION AND ORDER
On April 14, 2017, Plaintiff James E. Redd (hereinafter, “the Plaintiff”) filed
and served a Motion for Attorney Fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”) and memorandum in support thereof (Docs. 15, 16),
requesting an award of $863.78 attorney’s fees and reimbursement of the $400
filing fee from the Defendant Commissioner of Social Security. On April 19, 2017,
the Commissioner filed and served a response stating that she does not oppose the
motion or the amount requested. Upon consideration, the Court finds the Plaintiff’s
EAJA fee application (Doc. 15) is due to be GRANTED.1
“The EAJA provides that the district court ‘shall award to the prevailing
party other than the United States fees and other expenses ... incurred by that
By the consent of the parties (see Doc. 11), the Court has designated the undersigned
United States Magistrate Judge to conduct all proceedings and order the entry of judgment
in this civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (See
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.’ ”
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
“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).” United States v. J.H.T., Inc.,
872 F.2d 373, 375 (11th Cir. 1989).
“[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
The Court entered its “sentence four” remand order and judgment on
January 30, 2017. (See Docs. 13, 14). 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 January 30, 2017 (i.e. after March 31, 2017). See Fed. R.
App. P. 4(a)(1)(B), 26(a)(1)(C). Thus, the judgment became no longer appealable
after March 31, 2017. See Fed. R. App. P. 26(a)(1)(C). Because the Plaintiff filed
her EAJA fee application on April 14, 2017, the application is timely, and the Court
has jurisdiction to consider its merits.
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
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.”).
“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 an award of EAJA fees to the
(See Doc. 18).
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
[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 ...
(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. May 9, 2007)
(per curiam) (unpublished).
The Plaintiff requests an award of fees “based upon an hourly rate of $191.95
per hour for 4.5 hours of work on this case in federal court.” (Doc. 15). The Court
finds the number of billed hours (4.5) 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.2 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
“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).
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[ 3 ] 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 August 9, 2016, and the Court’s
Remand Order and Judgment were entered on January 30, 2017. The number of
days between those two dates is 174; thus the “temporal midpoint” between those
two dates falls in November 2016. The relevant CPI–U for November 2016 was
Plugging the relevant numbers into the foregoing formula renders the
following equation: $125 x 234.03/ 152.4. This calculation yields an hourly rate,
adjusted for “cost of living” increases, of $191.95, 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 attorney’s fees under EAJA in the amount of
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).
$863.78 (i.e. $191.95 x 4.5) and $400.00 for the incurred filing fee.
ADJUDGED that the Plaintiff’s Application for Attorney Fees under EAJA (Doc.
15) is GRANTED and that the Plaintiff is awarded from the Defendant
Commissioner $863.78 in attorney’s fees and $400.00 for the incurred filing fee. 4
DONE and ORDERED this the 21st day of April 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
a party requests one, 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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