McCarty v. Astrue
MEMORANDUM OPINION AND ORDER entered re 22 Motion for Attorney Fees (EAJA). The plaintiff be awarded attorney's fees in the amount of $2,504.30 under the Equal Access to Justice Act. Signed by Magistrate Judge William E. Cassady on 5/31/2013. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
This matter is before the Court, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P.
54(d)(2)(A), on the plaintiff’s application for an award of attorney’s fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (the “EAJA”) (Doc. 22), filed April 26, 2013, and
the Commissioner’s response (Doc. 24), filed May 28, 2013.
Upon consideration of all pertinent materials contained in this file, it is
ORDERED that the plaintiff should receive a reasonable attorney’s fee in the amount of
$2,504.30 under the EAJA for legal services rendered by her attorney in this Court.
Astrue v. Ratliff, ___ U.S. ____, 130 S. Ct. 2521, 2526 & 2526-27 (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 Ree) attorney’s fees
in the amount sought and substantiated under, inter alia, subsection (d)(1)(B). . . .
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[.]”); see also Brown v. Astrue, 271
Fed. 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
The Court therefore disregards the Assignment (Doc. 22-4) appended to
the plaintiff’s application.1
On March 29, 2013, the 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.
opinion and order.)
(Doc. 21; see also Doc. 20, memorandum
In the motion for an award of attorney’s fees under the EAJA
(Doc. 22), the plaintiff requests attorney’s fees in the amount of $2,504.30 to compensate
her attorney for the time (13.60 hours) spent representing her before this Court as of the
date of the filing of the fee application (see id. at 1).
oppose the amount of fees requested.
The Commissioner does not
(See generally Doc. 23.)
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 . . . ,
When, as is the case here, the Court is provided an executed “assignment,”
[i]n light of Ratliff, [the best] practice [is] to simply award the EAJA fees directly
to Plaintiff as the prevailing party and remain silent regarding the direction of
payment of those fees. It is not the duty of the Court to determine whether
Plaintiff owes a debt to the government that may be satisfied, in whole or in part,
from the EAJA fees award. The Court leaves it to the discretion of the
Commissioner to determine whether to honor Plaintiff’s assignment of EAJA
Varner v. Astrue, No. 3:09–cv–1026–J–TEM, 2011 WL 2682131, at *2 (M.D. Fla. July 11, 2011);
accord Dacosta-Lima v. Astrue, No. 3:11–cv–777–J–32TEM, 2012 WL 177398, at *3 (M.D. Fla. Jan.
23, 2012); Morris v. Astrue, No. 2:09–CV–595–FtM–36SPC, 2012 WL 260041, at *2 (M.D. Fla. Jan.
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.”
It is imminently clear in this case that the plaintiff is a prevailing party
under the EAJA,2 and that the position of the United States in this case was not
substantially justified, the defendant having made no arguments to the contrary.
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).
thirty-day clock did not begin to run in this case until the Court’s March 29, 2013
Judgment and Memorandum Opinion and Order became final, which occurred at the
end of the sixty (60) days for appeal provided under Rule 4(a)(1)(B)(iii) of the Federal
Rules of Appellate Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302 (1993), that is, May
28, 2013. The application filed in this case, bearing a date of April 26, 2013, while
premature, is nevertheless timely.
See Myers v. Sullivan, 916 F.2d 659, 679 n.20 (11th
Cir. 1990) (“Even a premature [EAJA] motion is considered timely.”) (citations omitted);
see also Hayward v. Astrue, No. CA 09-0453-C, 2010 WL 682507, at *1 (S.D. Ala. Feb. 22,
Like 42 U.S.C. § 1988, the EAJA is a fee-shifting statute.
And 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 (1983) (§ 1988)); see Jean v. Nelson,
“[A] party who wins a sentence-four remand order is a prevailing party.”
Shalala v. Schaefer, 509 U.S. 292, 302 (1993). (See Doc. 21, Judgment.)
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 (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
Hensley, 461 U.S. at 433-34 (citations omitted); see also id. at 437 (“[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. Housing 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 analysis.”).
In Norman, 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
Because the Commissioner interposes no objection to the fee petition, the Court
finds that the plaintiff’s counsel reasonably spent ten and ninety-five/hundredths
(10.95) 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 (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 $ 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 1033-1034 (citations and footnote omitted).
For years, the prevailing market rate in the Southern District of Alabama has
been $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.
The Court, however, has
adjusted that rate to account for the increase in the cost of living.
06-0147-C, Doc. 32.
Lucy v. Barnhart, CA
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 2012, the complaint having been
prepared and filed on April 13, 2012 (Doc. 1), and the Court having entered its order
and judgment on March 29, 2013 (Docs. 20, 21).
for October 2012 was 224.504.
(See Doc. 22-3.)
The Court takes notice that the CPI-U
Plugging the relevant numbers into
the foregoing formula renders the following equation: ($125 x 224.504) / 152.4.
Completion of this equation renders an hourly rate of $184.14.
In consideration of the
foregoing, the plaintiff should be awarded an attorney’s fee in the amount of $2,504.30
under the EAJA for the 13.60 hours her attorney spent performing work traditionally
performed by attorneys in Social Security cases.
The Court, therefore, ORDERS that the plaintiff be awarded attorney’s fees in
the amount of $2,504.30 under the Equal Access to Justice Act.
DONE and ORDERED this the 31st day of May, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?