Carney v. Berryhill
Filing
31
MEMORANDUM OPINION AND ORDER entered that Plaintiff be awarded attorney's fees in the amount of $3,375.58 under the Equal Access to Justice Act, representing compensation for 17.30 hours of service by Byron A. Lassiter, Esquire, at the cost-of-living-adjusted rate of $195.12. Signed by Magistrate Judge P. Bradley Murray on 7/3/2018. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEPHANIE T. CARNEY,
Plaintiff,
vs.
:
:
:
CA 17-0070-MU
NANCY A. BERRYHILL,
:
Deputy Commissioner for Operations,
performing the duties and functions not :
reserved to the Commissioner of
Social Security,1
:
Defendant.
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. 29.) 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
$3,375.58 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
1
8:53 a.m.)
See https://www.ssa.gov/agency/commissioner.html (last visited, April 17, 2018,
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 (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 Fed.Appx. 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.”)2.3
FINDINGS OF FACT
On March 7, 2018, 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. 28; see also Doc. 27.) The
application for an award of attorney’s fees under the EAJA was filed on June 4, 2018
2
As explained above, the attorney fees awarded herein are awarded to the
Plaintiff. However, following entry of this fee award, the government certainly can evaluate the
propriety of directing payment to Mr. Lassiter pursuant to the Limited Power of Attorney
executed by Ms. Carney on February 1, 2017 (see Doc. 29, Exhibit 2). See Ratliff, supra, 560
U.S. at 597, 130 S.Ct. at 2529 (“[T]he Government has since continued the direct payment
practice only in cases where ‘the plaintiff does not owe a debt to the government and assigns
the right to receive fees to the attorney.’”).
3
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 23 & 24 (“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.”)).
2
(Doc. 29), eighty-nine (89) days after entry of final judgment (compare id. with Doc. 28).
In her motion, Plaintiff requests attorney’s fees in the amount of $3,375.58 to
compensate her attorney for the time (17.30 hours) spent representing her before this
Court as of the date of the filing of the fee application (see Doc. 29, Exhibit 1,
Professional Services Rendered). The Deputy Commissioner for Operations of the
Social Security Administration did not file a response to Plaintiff’s application, though
extended the opportunity to file a response. (Compare Doc. 30 with Docket Sheet.)
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 EAJA4 and that the position of the United States in this case was not substantially
justified, as the government has not filed a response arguing otherwise.
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 7, 2018 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
4
“[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).
3
Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993),
that is, May 6, 2018. The motion filed in this case (Doc. 29), bearing a date of June 4,
2018, is timely since it was filed within thirty (30) days of May 6, 2018.
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)
(EAJA), quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76
L.Ed.2d 40 (1983) (§ 1988); see Jean v. Nelson, 863 F.2d 759, 772-773 (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. Commissioner, 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
statutory authority.”
Hensley, supra, 461 U.S. at 433-434, 103 S.Ct. at 1939-1940 (emphasis in original;
citations omitted); see also id., at 437, 103 S.Ct. at 1941 (“[T]he fee applicant bears the
4
burden of establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates.”); ACLU of Georgia 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. Housing Authority 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 analysis.”).
In Norman, supra, the Eleventh Circuit indicated that “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 at
1306. Because the Defendant has interposed no objection whatsoever to Plaintiff’s
EAJA application, the Court finds that Plaintiff’s counsel reasonably spent 17.30 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:
5
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 $[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 1033-1034 (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, 00-0408-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 August 24, 2017, the complaint having
been prepared and filed on February 9, 2017 (compare Doc. 29, Exhibit 1, Professional
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Services Rendered with Doc. 1) and the Court having entered its order and judgment on
March 7, 2018 (Docs. 27-28). The CPI-U for August of 2017 was 237.892. Plugging the
relevant numbers into the foregoing formula renders the following equation:
$125x237.892/152.4. Completion of this equation renders an hourly rate of $195.12.
In consideration of the foregoing, the Plaintiff is to be awarded an attorney’s fee
in the amount of $3,375.58 under the EAJA for the 17.30 hours her attorney spent
performing work traditionally performed by attorneys in social security cases.
CONCLUSION
The Court ORDERS that Plaintiff be awarded attorney’s fees in the amount of
$3,375.58 under the Equal Access to Justice Act, representing compensation for 17.30
hours of service by Byron A. Lassiter, Esquire, at the cost-of-living-adjusted rate of
$195.12.
DONE and ORDERED this the 3rd day of July, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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