Hill v. Astrue

Filing 27

REPORT AND RECOMMENDATIONS re 23 MOTION for Attorney Fees stating Plaintiff's attorney's Application be granted, without objection, and that Plaintiff'sattorney, William T. Coplin, Jr., be awarded an EAJA attorney's fee in the amount of $1,456.83. Objections to R&R due by 9/23/2009. Signed by Magistrate Judge Bert W. Milling, Jr on 9/9/09. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MARY ANNE HILL, o/b/o ERNEST J. HILL, IV, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. : : : : : : : : : : : :

CIVIL ACTION 08-0590-CB-M

REPORT AND RECOMMENDATION Pending before the Court is Plaintiff's attorney's Application for Attorney Fees Under the Equal Access to Justice Act, with supporting documentation (Doc. 23), Defendant's Notice of Intent Not to Object to Plaintiff's Application for Attorney's Fees Pursuant to the Equal Access to Justice Act, and Motion to Hold Ruling in Abeyance (Doc. 24), and Plaintiff's Response to Motion to Hold Ruling in Abeyance (Doc. 26)1.
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After

In Defendant's Notice of Intent Not to Object ..., and Motion to Hold Ruling in Abeyance (Doc. 24), he points out that Plaintiff's Application was filed prematurely. Plaintiff's action was remanded pursuant to sentence four of 42 U.S.C. § 405(g) by Order and Judgment entered on June 25, 2009. 28 U.S.C. § 2107(b) provides that in any action, suit, or proceeding in which the United States or an officer or agency thereof is a party, the time for appeal as to all parties shall be 60 days from the entry of judgment, order, or decree in the action, in this case August 24, 2009. Defendant requested that the Court withhold ruling on Plaintiff's Application until after August 24, 1

consideration of the pertinent pleadings, it is recommended that the Application be granted, without objection, and that Plaintiff's attorney, William T. Coplin, Jr., be awarded an EAJA attorney's fee in the amount of $1,456.832. Plaintiff filed this action on October 8, 2008 (Doc. 1). May 20, 2009, the undersigned Judge entered a Report and Recommendation, recommending reversal of the decision of the Commissioner and remand for further proceedings (Doc. 20). On On

June 25, 2009, Senior Judge Butler entered an Order and Judgment adopting the Report and Recommendation, reversing and remanding this action for further administrative proceedings (Doc. 21 and 22). On July 24, 2009, William T. Coplin, Jr., counsel for Plaintiff, filed an Application for Attorney Fees Under the Equal 2009. Plaintiff stated in her Response that she agreed that the Petition was filed early and had no objection to Defendant's Motion to Hold Ruling in Abeyance (Doc. 26). Therefore, the Motion to Hold Ruling in Abeyance was GRANTED and the Court delayed entering this Report and Recommendation until after August 24, 2009. In Panola Land Buying Ass'n v. Clark, 844 F.2d 1506, 1509 (11 Cir. 1988), the Court stated: "It is readily apparent that the party eligible to recover attorneys' fees under the EAJA as part of its litigation expenses is the prevailing party." See also, Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir. 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.") However, in this action, Mr. Coplin has attached to the Application for Attorney Fees an Assignment of EAJA Fees signed by Plaintiff (Attachment 4 to Doc. 23). Therefore, it is recommended that the EAJA fee be paid directly to Plaintiff's attorney.
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Access to Justice Act, in which he requests a fee of $1,456.83, computed at an hourly rate of $168.42 for 8.65 hours spent in this Court (Doc. 23). Defendant in his Notice filed August 6,

2009, stated that he does not oppose Plaintiff's Application (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). The EAJA further requires that a

prevailing party file an application for attorney's fees within thirty days of final judgment in the action. 2412(d)(1)(B). 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 Procedure. See Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct.

2625, 2632 (1993). Defendant concedes that Plaintiff became the prevailing party when the Court remanded this action, Schaefer, 113 S.Ct. at 2631, that the fee motion was timely filed; however, he does not concede that the original administrative decision denying benefits was not substantially justified (Doc. 24). 3

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, 1586 (11th Cir. 1985)(EAJA), quoting Hensley v. Eckerhartt, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (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. 4 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). The Court, after examination of Plaintiff's attorney's Application and supporting documentation, and after consideration of the reasonableness of the hours claimed, finds that Plaintiff's counsel's time expended in prosecuting this action for a total of 8.65 hours is reasonable. With respect to a determination of the hourly rate to apply in a given EAJA case, the express language of the Act 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 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)(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 5

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 factor. Id. at 1033-34 (citations omitted & footnote omitted)3. The

applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. 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. 104 S.Ct. 1541, 1547 n.11 (1984). Blum v. Stenson, 465 U.S. 886, Where the fees or time claimed

seem expanded or there is lack of documentation or testimony in support, the court may make an award on its own experience. Norman v. City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). Where documentation is inadequate, the court is not

relieved of its obligation to award a reasonable fee, but the court traditionally has had the power to make such an award without the need of further pleadings or an evidentiary hearing. Id. Since 2001, the prevailing market rate in the Southern District of Alabama has been $125.00 per hour. See e.g., Smith

v. Massanari, Civil Action 00-0812-P-M (October 25, 2001); and

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)(Supp. 1997).

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Square v. Halter, Civil Action 00-0516-BH-L (April 12, 2001). However, in 2007, in an action before Judge Cassady, a formula was approved and used to adjust the prevailing market hourly rate to account for the ever-increasing cost of living. Barnhart, CA 06-0147-C (July 5, 2007). Lucy v.

As set out in Lucy, the

formula to be used in calculating all future awards of attorney's fees under the EAJA is: "`($125/hour) x (CPI-U Annual Average "All Items Index", South Urban, for month and year of temporal midpoint4)/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 undersigned also adopts this formula

in EAJA fee petition actions for use in arriving at the appropriate hourly rate. The temporal midpoint in this action was February 2009, the complaint having been prepared on September 23, 2008 (Doc. 1), and the Court having entered its Order and Judgment on June 25, 2009 (Docs. 20, 21). The CPI-U for February 2009 was 205.343.

Plugging the relevant numbers into the foregoing formula renders the following equation: $125.00 x 205.343/152.4. this equation renders an hourly rate of $168.42. "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, CA 060147-C, Doc. 31, at 3. 7
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Completion of

In conclusion, it is recommended that Plaintiff's attorney's Application be granted, without objection, and that Plaintiff's attorney, William T. Coplin, Jr., be awarded an EAJA attorney's fee in the amount of $1,456.83. MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT 1. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that: A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection. A magistrate judge's recommendation cannot be appealed to a 8

Court of Appeals; only the district judge's order or judgment can be appealed. 2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript. DONE this 9th day of September, 2009. s/BERT W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE

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