McDaniel v. Colvin

Filing 28

MEMORANDUM OPINION AND ORDER entered re 26 Motion for Attorney Fees (EAJA). It is ORDERED that the Motion be GRANTED and that Plaintiff be AWARDED an EAJA attorneys fee in the amount of $1,763.75, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 2/13/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CLODIS MAE SMITH McDANIEL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 13-0310-M

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Attorney’s
Application for Attorney Fees Under the Equal Access to Justice
Act (hereinafter EAJA), with supporting Documentation (Doc. 26),
and Defendant’s Response (Doc. 27).

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 $1,763.75.
Plaintiff filed this action on June 25, 2013 (Doc. 1).

On

December 18, 2013, the undersigned Judge entered a Memorandum
Opinion and Order, reversing the decision of the Commissioner,
and remanding this action for further proceedings (Doc. 24).
Judgment was entered in favor of Plaintiff and against Defendant
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(Doc. 25).
On January 16, 2014, William T. Coplin, Jr., counsel for
Plaintiff, filed an Application for Attorney Fees Under the
EAJA, in which he requests a fee of $1.763.75, computed at an
hourly rate of $186.91 for 9.45 hours spent in this Court (Doc.
26).

Defendant, in her Response filed on January 30, 2014,

stated that she would not object to an award of attorney’s fees
under EAJA (Doc. 27).
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 (1993).
2

As set out above, there are three statutory conditions that
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.
Defendant apparently concedes that Plaintiff became the
prevailing party when the Court remanded this action, Schaefer,
509 U.S. 300-302, and that the fee motion was timely filed.
However, she does not concede that the original administrative
decision denying benefits was not substantially justified (Doc.
27).
With regard to this last condition, in order for Plaintiff
to recover attorney’s fees under the EAJA, the Government must
fail “to establish that its positions were ‘substantially
justified’ or that there exist ‘special circumstances’ which
countenance against the awarding of fees.”

Myers, 916 F.2d at

666 (interpreting and referring to 28 U.S.C. § 2412(d)(1)(A)).
That means that the Government must show that there was a
“reasonable basis both in law and fact” for the positions it
took.

Myers, 916 F.2d at 666 (citations omitted).
3

The Court

notes that “[a]n examination of whether the government’s
position was substantially justified encompasses an evaluation
of both the agency’s preligitation conduct and the subsequent
litigation positions of the Justice Department. . . . Unless the
government can establish that all of its positions were
substantially justified, the claimant is entitled to receive
attorney’s fees.”
omitted).

Myers, 916 F.2d at 666 n.5 (citations

Though Defendant bears the burden of showing that its

position was substantially justified, “[t]he fact that the
government lost its case does not raise a presumption that the
government’s position was not substantially justified.”

Ashburn

v. United States, 740 F.2d 843, 850 (11th Cir. 1984).
The Court finds that these three statutory conditions have
been met.

Though Defendant does not concede the third

requirement (Doc. 27), the Court notes that, in the Memorandum
Opinion and Order dated December 18, 2013, the Court found that
Defendant had filed a Motion to Reverse and Remand acknowledging
that error had been committed, that the determination needed to
be reversed, and that this action needed to be remanded for
further administrative proceedings (Doc. 24; cf. Doc. 21).

The

Court is not sure how the Commissioner can argue that its
position was substantially justified after seeking a remand of
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the action for failing to properly consider McDaniel’s claims
originally.

As noted previously, the Court finds that all three

Myers requirements have been met.
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.
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
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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

F.2d 1292, 1301 (11th Cir. 1988).
The Court, after examination of Plaintiff’s attorneys’
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 9.45 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
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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).
In Meyer v. Sullivan, 958 F.2d 1029 (11th Cir. 1992), the
Eleventh Circuit determined that the EAJA established 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 $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.
Meyer, 958 F.2d at 1033-34 (citations and footnote omitted).1
The applicant bears the burden of producing satisfactory
evidence that the requested rate is in line with prevailing
market rates.

1

NAACP V. City of Evergreen, 812 F.2d 1332, 1338

Subsequent to Meyer, the cap was raised from $75.00 per hour to

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(11th Cir. 1987).

Satisfactory evidence at a minimum is more

than the affidavit of the attorney performing the work.
Stenson, 465 U.S. 886, 895 n.11 (1984).

Blum v.

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 the 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 (S.D. Ala. October 25,
2001); and Square v. Halter, Civil Action 00-0516-BH-L (S.D.
Ala. 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.

Lucy v. Barnhart, Civil Action 06-0147-C (S.D.

Ala. July 5, 2007 (Doc. 32)).

As set out in Lucy, the formula

to be used in calculating all future awards of attorney’s fees

$125.00 per hour, as set out above in 28 U.S.C. § 2412(d)(2)(A).

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under the EAJA is:

“‘($125/hour) x (CPI-U Annual Average “All

Items Index,” South Urban, for month and year of temporal
midpoint2)/152.4, where 152.4 equals the CPI-U of March 1996, the
month and year in which the $125 cap was enacted.’”
32, at p. 11) (quoting Lucy, Doc. 31, at p. 2).

(Lucy, Doc.

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 September 20,
2013, the complaint having been filed on June 25, 2013 (Doc. 1),
and the Court having entered its Memorandum Opinion and Order
and Judgment on December 18, 2013 (Docs. 24-25).
September 2013 was 227.876.

The CPI-U for

Plugging the relevant numbers into

the foregoing formula renders the following equation:
227.876/152.4.
rate of $186.91.

$125.00 x

Completion of this equation renders an hourly
This hourly rate for 9.45 hours equals

$1,766.30.3
The Court notes that, in the application for Attorney’s

2

“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. Civil Action 06-0147-C (S.D.
Ala. Doc. 31, at p. 3).
3
The Court has performed the math several times and keeps
reaching this result. The Court will award Coplin the requested
amount, $1,763.75, though it is less than what the Court has

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Fees, counsel for Plaintiff requests that any award of
attorney’s fees be paid to Plaintiff’s attorney rather than to
Plaintiff (Doc. 26).

The Government argues that payment should

only go to the Plaintiff (Doc. 27).
As noted earlier, EAJA allows a Court to make an “award to
a prevailing party.”

28 U.S.C. § 2412(d)(1)(A).

In Panola Land

Buying Ass’n v. Clark, 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.), cert. denied, 555 U.S. 1072 (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, 560 U.S. 586, 589 (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 this action, Plaintiff McDaniel has specifically “agreed

calculated the attorney is due.

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to immediately deliver any check I receive for EAJA fees to” her
attorney (Doc. 26 Assignment).

Nevertheless, under the

reasoning of Reeves and Ratliff, the Court finds that the award
should be paid to Plaintiff Clodis Mae Smith McDaniel and not to
her attorney.
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 $1,763.75.
DONE this 13th day of February, 2014.

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

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