Sewell v. Astrue

Filing 20

ORDER GRANTING 18 Motion for Attorney Fees. It is ORDERED that Plaintiff be AWARDED an EAJA attorney's fee in the amount of $3,741.90, payable to Plaintiff,Charles James Sewell, as further set out in the order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/18/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CHARLES JAMES SEWELL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,1
Defendant.

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CIVIL ACTION 12-0761-M

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s attorney’s Motion
for an Award of Attorney Fees Under the Equal Access to Justice
Act (hereinafter EAJA), with supporting Documentation (Doc. 18),
and Defendant’s Response to Plaintiff’s Motion (Doc. 19).

After

consideration of 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 $3,741.90, payable to Plaintiff,
Charles James Sewell.
Plaintiff filed this action on December 21, 2012 (Doc. 1).
On July 31, 2013, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
1

Carolyn W. Colvin became the Commissioner of Social Security on
February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is
substituted for Michael J. Astrue as Defendant in this action. No
further action needs to be taken as a result of this substitution. 42
U.S.C. § 405(g).

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and remanding this action for further proceedings (Doc. 16).
Judgment was entered in favor of Plaintiff and against Defendant
on that same date (Doc. 17).
On October 10, 2013, Darryl W. Hunt, counsel for Plaintiff,
filed this Application in which he requested a fee of $3,741.90,
computed at an hourly rate of $184.33 for 20.30 hours spent in
this Court (Doc. 18).

Defendant does not oppose an award of

attorney’s fees under EAJA for the amount requested at the
hourly rate requested (Doc. 19).
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

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Procedure.

See Shalala v. Schaefer, 509 U.S. 292 (1993).

As set out above, there are three statutory conditions
which must be satisfied before EAJA fees may be awarded under 28
U.S.C. § 2412.
Cir. 1990).

See Myers v. Sullivan, 916 F.2d 659, 666 (11th

First, the claimant must file an application for

fees within the thirty-day period.
a prevailing party.

Second, the claimant must be

Third, the Government’s position must not

be substantially justified.
The Court finds that these three statutory conditions have
been met.

Though Defendant does not concede the third

requirement (Doc. 19, pp. 1-2), the Court finds, after
reconsideration of the reasoning given in the Memorandum Opinion
and Order (Doc. 16), that the Government’s position was not
substantially justified.
Having found that the three prerequisites have been
satisfied, the Court will now discuss the fee to be awarded in
this action.
statute.

The EAJA, like 42 U.S.C. § 1988, is a fee-shifting

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.

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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

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F.2d 1292, 1301 (11th Cir. 1988).
The Court, after examination of Plaintiff’s attorney’s
Application and supporting documentation, finds that Plaintiff’s
counsel’s time expended in prosecuting this action for a total
of 20.30 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, justified a higher
fee.
28 U.S.C. § 2412(d)(2)(A) (Supp. 1997).

Plaintiff’s 20.30

hours, paid at an hourly rate of $184.33, equals $3,741.90.
The Court notes that, in the application for Attorney’s
Fees, counsel for Plaintiff requests that any award of
attorney’s fees be paid to Plaintiff (Doc. 18, p. 1).

EAJA

allows a Court to make an “award to a prevailing party.”
U.S.C. § 2412(d)(1)(A).

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In Panola Land Buying Ass’n v. Clark,

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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 prevailing party.”

See also

Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir. 2008), cert.
denied, 129 S.Ct. 724 (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,
130 S.Ct. 2521, 2524 (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.
In conclusion, it is ORDERED that Plaintiff’s Application
be GRANTED as set out above and that Plaintiff be AWARDED an
EAJA attorney’s fee in the amount of $3,741.90, payable to
Plaintiff.
DONE this 18th day of November, 2013.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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